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As mobile technologies become the platform of choice for commercial transactions, how will antitrust law adapt? While current tying law has been criticized for its reliance on dated physical product precedents, the principles of tying and bundling doctrines are well-suited to address the next technology-based product combinations and integrations. Examination of antitrust’s economic underpinnings and evaluation of tying and bundling precedent indicates that current tying and bundling law is sufficiently flexible to address future high-technology antitrust issues.
Smartphone technologies are an ideal foil for emerging antitrust issues, as these technologies stand at the crossroads for tying and bundling inquiries. Integration of a smartphone mobile operating system (“mOS”) with an application clearinghouse exemplifies the types of challenges that will test current tying and bundling doctrines. These dynamic high technology products exhibit a dual nature, as they are easily cognizable as separate products, yet they can also be characterized as a single product. This Note examines several permutations of tying tests to draw out the consequences of treating smartphone technologies as single or multiple products under the law.
To ensure the viability and increase the efficacy of current tying and bundling applications by courts, this Note recommends that (1) non-equilibrium-based assertions by either plaintiffs or defendants should be recognized as the exception, not the norm; (2) flexible rule-of-reason analyses should be utilized in high-technology industries; and (3) evidentiary tools, such as natural experiments and price-indexes, should be considered presumptive evidence of anticompetitive arrangements. Although it is unorthodox to suggest that current tying and bundling law does not need to be significantly altered in order to address the issues raised by dynamic high technology industries, effective integration of evidentiary and econometric analyses rises to the challenge--while maintaining a modest role for antitrust in the economy.