Thursday, March 10, 2005
Eriq Gardner reports in the March 2005 issue of IP Law and Business on an antitrust suit brought against Monsanto by Syngenta, challenging Monsanto's licensing practices with respect to its patent on genetically modified seeds. This case follows on the heels of an antitrust suit brought by farmers also challenging Monsanto's practices.
Syngenta charges that Monsanto structured its contracts with some 300 seed companies so that if they substitute a competitor's genetic traits for any of Monsanto's, the seed companies must forfeit the bulk discounts they receive when they buy additional Monsanto traits.
Syngenta's general counsel, Edward Resler, calls Monsanto "a monopolist. " Monsanto's discount program has multiple purposes, he says. It ensures that seed companies promote seeds with Monsanto traits. And he alleges that the program is a convenient way to get seed companies to license Monsanto's entire product portfolio. How? Monsanto also offers seed companies incentive packages for "stacked traits." A seed company that sells a certain percentage of seed with a Monsanto GM trait, like corn engineered to resist the corn borer insect, for example, also gets a discount off another Monsanto GM trait, like glyphosate-tolerance.
Wednesday, March 9, 2005
Tuesday, March 8, 2005
Professor William Page has published an empirical study of class certification in the private antitrust actions against Microsoft. His study looks at the effects of the indirect purchaser rule on the decisions of courts to certify class actions in the Microsoft litigation. He writes:
"Although the Illinois Brick rule denies indirect purchasers the right to sue under the federal antitrust laws, many states have authorized these suits under state antitrust or consumer protection law. Before the Microsoft cases, however, courts in the Illinois Brick repealer states had refused, more often than not, to certify indirect purchaser suits as class actions on the grounds that issues specific to the individual plaintiffs, particularly the issue of impact, predominated over the issues common to the class. In these courts' skeptical view, the complexities of proving whether and by how much the direct purchasers had passed on the overcharge to the plaintiffs would likely overwhelm any common issues, like questions of liability, and thus make the cases unsuitable for trial as class actions. The courts in the Microsoft indirect purchaser cases, however, have certified them as class actions much more frequently. "
Professor Gal of The University of Haifa Faculty of Law makes an interesting case for identifying the factors leading to successful competition policy in developing countries in a recently posted SSRN article. The paper is a useful contribution to our understanding of competition law in developing economies.
In a recently posted working paper on SSRN, Professor Jim Rossi of Florida State University Law School presents an argumetn based on theories of political bargaining and political failure to explain the relationship between the dormant commerce clause and state action immunity in antitrust law. Professor Rossi concludes that these two doctrines share "the common purpose of deterring the adoption of regulations with adverse spillover effects for those who do not participate in the relevant lawmaking process."
Monday, March 7, 2005