Vol 7 No 1 - Roger Williams University School of Law

his refusal to sell or license his patented invention mayhave an anticompetitive effect, so long as thatanticompetitive effect is not illegally extended beyond thestatutory patent grant. It is the infringement defendantand not the patentee that bears the burden to show thatone of these exceptional situations exists and, in theabsence of such proof, we will not inquire into thepatentee’s motivations for asserting his statutory right toexclude. Even in cases where the infringement defendanthas met this burden, which CSU has not, he must thenalso prove the elements of the Sherman Act violation.212The court then turned to the issue of copyright, stating:The Copyright Act expressly grants a copyright owner theexclusive right to distribute the protected work by“transfer of ownership, or by rental, lease, or lending.”“[T]he owner of the copyright, if [it] pleases, may refrainfrom vending or licensing and content [itself] with simplyexercising the right to exclude others from using [its]property.”The Supreme Court has made clear that the propertyright granted by copyright law cannot be used withimpunity to extend power in the marketplace beyondwhat Congress intended. The Court has not, however,directly addressed the antitrust implications of aunilateral refusal to sell or license copyrightedexpression.The Tenth Circuit has not addressed in any publishedopinion the extent to which the unilateral refusal to sellor license copyrighted expression can form the basis of aviolation of the Sherman Act. We are therefore left todetermine how that circuit would likely resolve the issue;the precedent of other circuits is instructive in thatconsideration. The Fourth Circuit has rejected a claim ofillegal tying, supported only by evidence of a unilateraldecision to license copyrighted diagnostic software tosome but not to others. In reaching this conclusion, the212. In re Indep. Serv. Org. Antitrust Litig., 203 F.3d 1322, 1325-28 (Fed. Cir.2000) (citations omitted).