Friday, February 20, 2009
Posted by D. Daniel Sokol
I would like to discuss the practical issues that underlie any attempt to regulate innovation markets. I have identified at least three such considerations. First, the most fundamental practical consideration is whether, from a policy standpoint, the application of antitrust laws to innovation markets provides consumers with better products or products that are developed more quickly... A second practical consideration was raised by Chairman Muris in the Genzyme- Novazyme merger—namely, whether it is even possible to accurately measure market shares in innovation markets, particularly when the agency’s theory of the case is that a merger will threaten potential competition in an as-yet undefined market...A third practical consideration is whether, notwithstanding the Intellectual Property Guidelines, it is accurate to consider all intellectual property (i.e. patents, trade secrets, know-how, trademarks, etc.) as akin to other species of property.