Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

A Member of the Law Professor Blogs Network

Saturday, February 21, 2009

The New Consensus on Class Certification: What it Means for the Use of Economic and Statistical Evidence in Meeting the Requirements of Rule 23

Posted by D. Daniel Sokol

Evans David Evans (University of Chicago, University College London, LECG) addresses The New Consensus on Class Certification: What it Means for the Use of Economic and Statistical Evidence in Meeting the Requirements of Rule 23.

ABSTRACT: Offering expert testimony that is a hair's breadth away from nutty is no longer sufficient to secure class certification according to an emerging consensus across the circuit courts. The court must also get into any merits issues that are relevant to the class issues. As a practical matter credible expert testimony will prove more important going forward in all types of class certification for both plaintiffs and defendants. This note summarizes the consensus that is emerging and describes the sorts of analyses that will prove critical in seeking or opposing the certification of a particular class.

February 21, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, February 20, 2009

State Action Doctrine in Spain: Treatment of State Anticompetitive Restrictions

Posted by D. Daniel Sokol

Fmarcos Francisco Marcos of Instituto de Empresa Business School (and a judge of the Tribunal de Defensa de la Competencia de la Comunidad de Madrid) discusses State Action Doctrine in Spain: Treatment of State Anticompetitive Restrictions.

ABSTRACT: The exemption of application of antitrust prohibitions when they are introduced in legislative rules is established in the new Defence Competition Act 15/2007, of July 3rd 2007, in similar terms to those contained of the prior Defence Competition Act 16/1989. The drafting of section 4 of Defence Competition Act 15/2007 improves the technical quality of its predecessor, having extended its coverage to all prohibitions of restrictive conducts of competition, including abuse of dominant position and falsification of free competition through unfair practices. Besides, it excludes from its coverage all anticompetitive conducts that are not contained or foreseen in legislative rules or that stem from the performance of the public Administration, as well as the anticompetitive actions of the state-owned companies lacking legislative support.

However, section 4 contains an inadequate and unnecessary reference to the application of the Community Law (which was first introduced in the 1999 reform of the Defence Competition Act) that, taken to his its last consequences, questions the theory of the "double barrier" and the own existence and sense of the Spanish legislation of Defence competition.

From another perspective the paper underlines how the new Defence Competition Acts sets the foundations for correcting the mistakes committed in the previous practice of the Defence Competition Court in its struggle against the administrative rules and acts that, without legal coverage, introduced or contained restrictions to the competition. Nowadays the National Competition Commission and the corresponding regional authorities cannot un-apply or declare the nullity of these acts and bylaws themselves but the possibility of challenging them before the competent jurisdiction is given (section 13.2).

February 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Mergers and Market Dominance

Posted by D. Daniel Sokol

Herberthovenkampphp Herb Hovenkamp,University of Iowa College of Law has a new piece on Mergers and Market Dominance.

Mergers involving dominant firms legitimately receive close scrutiny under the antitrust laws, even if they involve tiny firms. Further, they should be examined closely even in markets that generally exhibit low entry barriers. Many of the so-called "unilateral effects" cases in current merger law are in fact mergers that create dominant firms. The rhetoric of unilateral effects often serves to disguise this fact by presenting the situation as if it involves the ability of a small number of firms (typically two or three) in a much larger market to increase their price to unacceptable levels. In fact, if such a grouping of firms can achieve an unacceptably high price increase for an unacceptable length of time, that grouping is best viewed as a relevant market unto itself.

February 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Antitrust Regulation Of Innovation Markets

Posted by D. Daniel Sokol

The remarks of FTC Commissioner Tom Rosch on Antitrust Regulation Of Innovation Markets that Rosch presented at the ABA Antitrust-IP conference at Berkeley are now available.  Some highlights include:

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.

February 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Microsoft, Refusal to License Intellectual Property Rights, and the Incentives Balance Test of the EU Commission

Posted by D. Daniel Sokol

Wolfgang Kerber, Philipps University Marburg - Department of Business Administration and Economics and Claudia Schmidt, University of Marburg - Faculty of Economics and Business Administration have a new paper on Microsoft, Refusal to License Intellectual Property Rights, and the Incentives Balance Test of the EU Commission.

ABSTRACT: This article contributes to the analysis of refusal to license cases as abuse of a dominant position pursuant Article 82 EC from an economic perspective. In the Microsoft case, the European Commission introduced an "Incentives Balance Test" to assess whether the refusal to give access to interface information can be justified by arguing that this information is protected by Intellectual Property Rights (IPRs): The Commission argued that if the overall innovative effects evoked by a compulsory license are significantly higher than without this access, the IPR owner is obliged to license. This should be assessed through balancing the different incentives to innovate between the dominant firm and its competitors. In the paper we pursue two objectives: Firstly, we analyze to what extent the decision of the Court of First Instance, which confirmed the decision of the Commission, helps to clarify the criteria in refusal to license cases; in fact, it is disappointing in this regard. Secondly, we demonstrate that the basic idea of the Incentives Balance Test can be interpreted as a test whether the specific IPRs of the dominant firm can be defended from the perspective of the economics of IPRs. This implies that Article 82 allows competition law to correct economically not optimal IPRs through a specific economic analysis. This is followed by a broad overview on theoretical and empirical insights from economics of IPRs, innovation economics and competition and network economics that can help to develop a more general and sophisticated Innovation Effects Test that can be applied in Article 82 refusal to license cases.

February 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2009

Professor Christopher Leslie on the Move

Posted by D. Daniel Sokol

As reported by Brian Leiter's Law School Reports, Chicago Kent professor Christopher Leslie is joining the faculty at the new UC Irvine Law School.  Congratulations to Christopher on the move.  His departure leaves David Gerber as the only Chicago Kent antitrust specialist.

February 19, 2009 | Permalink | Comments (0) | TrackBack (0)

FTC Announces Third in Series of Hearings on Evolving Intellectual Property Marketplace

Posted by D. Daniel Sokol

The FTC has announced Public Hearings to be held in Washington, DC on March 18 and 19, 2009 on The Evolving Market for Intellectual Property.

INDUSTRY ROUNDTABLES
MARCH 18, 2009
Four panels will examine the operation of IP and technology markets in a variety of industries and contexts and the impact of patent policies on those markets. Panelists will discuss the factors they consider in determining how to use patents in the IP marketplace, for instance, whether to enforce exclusivity or enter licensing agreements. The panels will consider whether these markets operate efficiently and transparently, and what could be done to improve their operation. The effect of recent Supreme Court decisions and uncertainty in the patent system will be discussed, as will experience with the patent system’s notice function.

PANEL 1: UNIVERSITIES AND ENTREPRENEURS
9:00-10:30
Panelists:
Ron D. Katznelson, Ph.D., President, Bi-Level Technologies
Joe E. Kiani, Chief Executive Officer and Chairman of the Board of Directors, Masimo Corp.
Jon Soderstrom, Ph.D., Managing Director, Office of Cooperative Research, Yale University
Thomas G. Woolston, Chief Executive Officer, MercExchange LLC

BREAK:
10:30-10:45

PANEL 2: THE IT AND ELECTRONICS INDUSTRIES
10:45-12:15
Panelists will include:
John Thorne, Senior Vice President and Deputy General Counsel, Verizon Communications Inc.
BJ Watrous, Vice President and Associate General Counsel, Intellectual Property & IP
Licensing, Hewlett-Packard Company

LUNCH BREAK :
12:15-1:45

PANEL 3: MANUFACTURING AND DIVERSIFIED COMPANIES
1:45-3:15
Panelists:
William J. Coughlin, President and CEO, Ford Global Technologies
Gary Griswold, retired President and Chief IP Counsel, 3M Innovative Properties
Carl Horton, Chief IP Counsel, GE
Steven W. Miller, Vice President & General Counsel - Intellectual Property, The Procter & Gamble Company
Richard F. Phillips, Chief Attorney, Technology, ExxonMobil Chemical Company

BREAK:
3:15-3:30

PANEL 4: BIOTECHNOLOGY AND PHARMACEUTICAL INDUSTRIES
3:30-5:00
Panelists:
Thomas J. DesRosier, Senior Vice President; General Counsel; Chief Legal Officer, Genezyme Corp.
Dr. Jeffrey Myers, Head of global IP Enforcement Group , Pfizer, Inc.
Steven Singer, Partner, and Chair, Technology Transactions and Licensing Practice Group; Co-
Chair, Life Sciences Group, Wilmer Hale
James D. Smith, Associate General and Chief Intellectual Property Counsel, Baxter Int'l.

THE OPERATION OF IP MARKETS
MARCH 19, 2009
KEYNOTE ADDRESS
9:00-9:30
Herbert F. Schwartz, retired partner, Ropes & Gray, Adjunct Professor of Law, University of Pennsylvania Law School and New York University Law School

PANEL 1: ECONOMIC PERSPECTIVES ON IP AND TECHNOLOGY MARKETS
Panelists will examine how patents facilitate technology transfer, whether markets for technology and IP operate efficiently and transparently, and what could be done to improve their operation. The effect of recent Supreme Court decisions on licencing decisions will be discussed.
9:30-11:30
Panelists:
Professor Ashish Arora, Heinz College, Carnegie Mellon University and Fuqua School of Business, Duke University
James E. Bessen, Lecturer in Law, Boston University School of Law; Director, Research on Innovation
Professor F. Scott Kieff, Washington University School of Law and Senior Fellow, Hoover Institution
Robert Hunt, Ph.D., Assistant Vice President, Federal Reserve Bank of Philadelphia
Professor Scott Stern, Kellogg School of Management, Northwestern University

LUNCH BREAK :
11:30-1:00

PANEL 2: FULFILLING THE PATENT SYSTEM’S PUBLIC NOTICE FUNCTION
1:00-5:15 (break from 3:00-3:15)
Experts from academia and the bar will address the extent to which the patent system adequately fulfills its notice function – for example, ensuring that the firms seeking to develop and introduce innovative technologies can obtain clear and reliable information regarding the existence and scope of patent rights that could cover those technologies. Specifically, panelists will consider how various patent law doctrines or procedural aspects of the system affect notice, including (1) legal standards such as rules of claim construction and standards governing indefiniteness, written description, and enablement, and (2) examination practice and procedures, including notice available from the information that applicants are required to supply during the examination process, the information provided by examiners in allowing claims, the use of continuing applications, and the publication of applications and evolving claims.
Panelists will include:
Robert A. Armitage, Senior Vice President and General Counsel, Eli Lilly & Co.
Dan L. Burk, Founding Faculty, University of California Irvine School of Law
Christopher A. Cotropia. Associate Professor of Law, University of Richmond School of Law
Stephen G. Kunin, Partner, Oblon, Spivak, McClelland, Maier & Neustadt, P.C.
Arti K. Rai, Elvin R. Latty Professor of Law, Duke University School of Law
Teresa Stanek Rea, Partner, Crowell & Moring

February 19, 2009 | Permalink | Comments (0) | TrackBack (0)

It Takes 2 to Tango: Competition Policy Analysis for 2-Sided Markets

Posted by D. Daniel Sokol

It Takes 2 to Tango: Competition Policy Analysis for 2-Sided Markets

Lecturer(s): Professor David S. Evans and Richard Schmalensee

Two-sided markets is one of the hottest areas in economics and competition policy. Some businesses operate platforms that connect two groups of customers, help those customers interact, and in doing so create value. Economists and antitrust practitioners have known for a long time that advertising-supported media had two groups of customers: the readers and the advertisers. But only since 2000 have economists understood that having two groups of distinct customers is a common feature of many businesses, old and new, and that this feature has tremendous implications for the economics of these businesses. From shopping malls to computer-operating systems to payment schemes to search-based advertising, two-sided issues loom large.

It is now widely recognized by antitrust and economic scholars that analyzing competitive practices such as mergers and abuse of dominance in these two-sided industries requires special consideration. This course, by two of the leading contributors to the two-sided literature, will provide a basic introduction to two-sided markets and then show how the concepts can be applied for market definition and for analyzing monopolization and abuse of dominance cases.

February 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Prices and Profits in Dominant Firm Adjudication

Posted by D. Daniel Sokol

F.M. Scherer of Harvard - Kennedy School of Government provides insights into Prices and Profits in Dominant Firm Adjudication.

ABSTRACT: Written for a conference at the University of Lisbon, this paper analyzes policies toward prices and profits in competition policy actions targeting dominant or monopolistic enterprises. Its motivation came from dilemmas posed by the European Commission's recent actions with respect to the Microsoft Corporation. The paper traces reasons why competition policy enforcers have been reluctant to assess the reasonableness of prices and profits and to prescribe changes in price levels. It identifies cases in which such oversight is essential for effective policy implementation. Drawing upon the Microsoft experience, it asks whether governmental intervention with respect to intellectual property licenses and the royalties they carry jeopardizes technological progress. An optimistic conclusion is reached.

February 19, 2009 | Permalink | Comments (0) | TrackBack (0)

The European Commission Formulates its Enforcement Priorities as Regards Exclusionary Conduct by Dominant Undertakings

Posted by D. Daniel Sokol

Philip Lowe (European Commission, DG Competition) has written an essay on The European Commission Formulates its Enforcement Priorities as Regards Exclusionary Conduct by Dominant Undertakings.

ABSTRACT: During the past 50 years, the enforcement of Article 82 of the EC Treaty—which prohibits abuse of dominance—has been a cornerstone of the European Commission's competition policy. Investigations based exclusively on Article 82 currently make up one quarter of the Commission's ongoing antitrust cases. Taking into account cases involving both Article 81—which prohibits anticompetitive agreements—and Article 82, between one third and one half of our recent cases involve Article 82.

The text of Article 82 has remained untouched since 1957 despite several amendments to the Treaty. However, the context in which Article 82 has been applied has changed enormously. As a result, the Commission's interpretation of Article 82 has evolved over the years, under the supervision of the EU Courts. This context includes, of course, the furthering of EU integration and the Single Market, but also profound changes in the environment in which companies operate and developments in our understanding of how markets work, informed by evolving economic evidence and theory.

In 2005 DG Competition launched a review of its policy on Article 82 by publishing a Staff Discussion Paper. The purpose was to promote clarity and predictability, and to bring Article 82 policy in line with the effects-based approach, developed under Article 81 and mergers since the late 1990s, and already present in individual Article 82 cases.

The Discussion Paper sparked a wide ranging debate, both within and outside the Commission, on the objectives and enforcement principles that should guide the application of Article 82. The review resulted in the Commission adopting, on December 3, 2008, guidance on its enforcement priorities in applying Article 82 to abusive exclusionary conduct by dominant undertakings.

February 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2009

A Larger Slice or a Larger Pie? An Empirical Investigation of Bargaining Power in the Distribution Channel

Posted by D. Daniel Sokol

Michaela Draganska, Stanford - Graduate School of Business, Daniel Klapper, Johann Wolfgang Goethe-UniversitÄat Frankfurt and Sofia B. Villas-Boas, Berkeley - Department of Agricultural and Resource Economics have a new paper on A Larger Slice or a Larger Pie? An Empirical Investigation of Bargaining Power in the Distribution Channel.

ABSTRACT: This research aims to provide insights into the determinants of channel profitability and the relative power in the channel by considering consumer demand and the interactions between manufacturers and retailers in an equilibrium model. We use the Nash bargaining solution to determine wholesale prices and thus how margins are split in the channel. Equilibrium margins are a function of demand primitives and of retailer and manufacturer bargaining power. Bargaining power is itself a function of exogenous retail and manufacturer characteristics. The parties' bargaining positions are determined endogenously from the estimated substitution patterns on the demand side. The more they have to lose in a negotiation relative to an outside option, the weaker the bargaining position. We use the proposed bargaining model to investigate the role of the three main factors that have been blamed for the power shift from manufacturers to retailers in recent years (firm size increases, store brand introductions, and service level differentiation). In our empirical analysis of the German market for coffee, we find that bargaining power varies among the different manufacturer- retailer pairs. This result suggests that bargaining power is not an inherent characteristic of a firm but rather depends on the negotiation partner. We are able to confirm empirically previous theoretical findings that there can be cases where the slice of the pie that goes to one of the channel members may decrease but the overall pie increases and compensates for the smaller share of profits.

February 18, 2009 | Permalink | Comments (0) | TrackBack (0)

A Peak Into the Future? AAG-Designate Christine Varney on Section 2: Audio from AAI June 2008 Conference

Posted by D. Daniel Sokol

At the AAI annual conference in June 2008, Christine Varney, President Obama's nominee for the top antitrust position at DOJ, spoke on a panel about Section 2 of the Sherman Act. She generally endorsed the AAI's transition recommendations and commented on the need for creating the right political climate for Section 2 intervention, the difficult intersection of Section 2 and intellectual property, the potential monopoly power of Google, and the risk that Europe will have the more influential role on dealing with dominant firms unless the DOJ takes a more active role. Listen to the audio from Varney’s Section 2 panel here.

One quote worth remembering is,“For me, Microsoft is so last century. They are not the problem.” Does this mean trans-Atlantic turbulence given recent Commission efforts (again) against Microsoft?

February 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Antitrust, Entrepreneurship and Innovation

Posted by D. Daniel Sokol

All are invited to The Ewing Marion Kauffman Foundation Distinguished Lecture in Antitrust, Entrepreneurship, and Innovation, with 2009 Guest Lecturer Prof. Einer Elhauge, Harvard Law School.  The lecture will be held at the American University Washington College of Law, 4801 Massachusetts Ave., N.W., Washington, DC, 6th floor, on February 24, 2009.  The lecture is schedule for 6 pm to 7 pm, and will be preceded by a reception at 5 pm.  Registration is available without charge at www.wcl.american.edu/secle/registration or secle@wcl.american.edu.

February 18, 2009 | Permalink | Comments (0) | TrackBack (0)

The Commission Guidance on Predation: A Cautious Step In the Right Direction?

Posted by D. Daniel Sokol

Thomas Janssens (Freshfields) provides his thoughts on The Commission Guidance on Predation: A Cautious Step In the Right Direction?

ABSTRACT: In the EU, predatory pricing analysis traditionally has stood somewhat apart from the assessment of other types of unilateral conduct under Article 82 EC Treaty. In its AKZO judgment of 1991, the European Court of Justice ("ECJ") relied on cost and sales price data, by adopting the ‘Areeda-Turner’ test for predation, long before an economic approach to abuse of dominance analysis became pervasive. But, the AKZO test also to some degree disregarded economic effects, in so far as it established a ‘per se’ rule (for pricing below average variable costs, ("AVC")) and emphasised the importance of exclusionary intent (for pricing below average total costs, ("ATC")).

In its Wanadoo decision of 2003, the European Commission ("Commission") applied the AKZO test and explicitly rejected the notion that recoupment of losses should be part of the test for predation. The Commission’s approach was upheld by the Court of First Instance ("CFI"). Although many commentators considered this was inconsistent with contemporary economic theory and unnecessarily diverged from the analysis under US antitrust law, the Commission’s Staff Discussion Paper of 2005 maintained that separate proof of (the possibility of) recoupment was not required to find an abuse.

Against this background, the Commission’s Guidance appears to propose a blend of old and new theories. The Commission indicates it will generally intervene where a dominant firm engages in predatory conduct "by deliberately incurring losses or foregoing profits in the short term … so as to foreclose, or be likely to foreclose, one or more of its actual or potential competitors with a view to strengthening or maintaining its market power, thereby causing consumer harm."

February 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2009

Managing Economic Analysis in Competition Law

Posted by D. Daniel Sokol

Managing Economic Analysis in Competition Law
March 6-7, 2009
Location: Schloss Gracht

Modern EU competition law focuses on an effects-based analysis. The handling of empirical evidence and economic arguments and the incorporation of these into the legal assessment becomes more important. In order to achieve the best outcome for their clients, senior legal advisors and counsel need to integrate economic analysis in a case and make best use of it. This requires an understanding of what modern economic analysis can deliver and how to interpret its results.

This one-and-a-half day practice-oriented program is designed for senior EC competition lawyers working in private practice, in-house, or for a competition authority. Rather than trying to turn experienced lawyers into economists, the program aims at improving their use and understanding of economics. Surrounded by peers, participants will be able to share their experience with regard to economic analysis. Senior European economic experts who have shaped the effects-based approach and advised competition lawyers in numerous cases will offer an interactive course meant to strengthen your profile as a competition lawyer.

Target Audience

 

You are a senior lawyer working on EC competition cases in private practice, for a competition authority, or in-house. Using your extensive understanding of European competition law, you would like to improve your management approach and understanding of economic analysis in competition cases.

Key Topics

 

  • Overview: economic analysis and its role in modern EC competition cases
  • Empirical analysis in low and rich data environments: surveys, observed behavior, low- and high-tech techniques
  • Trade-off between economic analysis of competitive effects and/or efficiencies
  • Use and abuse of conceptual arguments: unilateral vs. coordinated effects, trade-offs, contradictions and commonalities
  • Counterfactual analysis in various fields of competition policy
  • Scrutinizing economic analysis: Examples of good and bad types of economic analysis in competition policy

Take-Home Value

This program will provide you with an understanding of economic tools in competition cases. It will enable you to understand what economic analysis can deliver regarding competitive cases and allow you to use economics and economic analysis as a proactive instrument when advising clients and making relevant decisions. By identifying the elements of robust economic analysis, it will help you to distinguish good economic advice from bad. The program will also help you to develop expert knowledge regarding the type of economics that can make a difference in EC competition cases.

Meet the Faculty

Rainer Nitsche (Program Director)

Rainer Nitsche is an expert in providing economic advice in merger and state aid control as well as in competition and litigation cases before the European Commission and national competition authorities. Prior to joining ESMT Competition Analysis, Rainer Nitsche was Vice President in the Competition Practice and Director of the Brussels office of CRA. Before his five years in Brussels he was an economic consultant at Price Waterhouse and Arthur Andersen in London and Berlin.

Hans  W.  Friederiszick
Full biography

Hans W. Friederiszick was appointed managing director of ESMT Competition Analysis in October 2006 and a full-time member of the faculty in July 2007. From 2003 to 2006 he was part of the Chief Economist Team of DG COMP. Besides his involvement in merger and antitrust cases, during his stay at the Commission he was one of the main contributors to the development of what is called the refined economic approach in the field of state aid. From 2001 to 2003 he was partner of an economic consultancy. In 2000 Hans was awarded his doctorate within the PhD program “Applied Microeconomics,” offered jointly by the Free University and the Humboldt University Berlin.

Lars-Hendrik Röller
Full biography

Lars-Hendrik Röller took over as President of ESMT on September 1, 2006. Before joining ESMT, he was the first Chief Competition Economist of the European Commission. Lars-Hendrik Röller was a professor at INSEAD from 1987 to 1999. In 1994 he became the Director of the research unit “Competitiveness and Industrial Change” at the Wissenschaftszentrum Berlin (WZB), Europe’s largest social science research center. In 1995 he was appointed Professor for Industrial Economics at Humboldt-Universität zu Berlin. His areas of expertise include competition, strategy and regulation.

   

February 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Hunger Strike Against Cartels

Posted by D. Daniel Sokol

Read here about the amazing steps taken in Greece to educate the public about the evils of cartels.

Theodoros Tenezos,39 years old  owner of a medium size Company in the construction steel sector, has entered  this morning  his second day on Hunger Strike ,protesting against Cartels and Greek Competition Commission  in front of the offices of the Greek Competition Commission in central Athens.

February 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Most Downloaded Antitrust Author for New Works Posted in the Past 2 Months - February 2009 Edition

Posted by D. Daniel Sokol

Ranking, Number of downloads, Article, Person, Affiliation

1. 222 New Antitrust Realism
Maurice E. Stucke,
University of Tennessee College of Law

2. 180 Antitrust Evaluation of Horizontal Mergers: An Economic Alternative to Market Definition
Joseph Farrell, Carl Shapiro,
University of California, Berkeley - Department of Economics, University of California, Berkeley - Economic Analysis & Policy Group,

3. 139 Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appeals
Michael R. Baye, Joshua D. Wright,
Indiana University Bloomington - Department of Business Economics & Public Policy, George Mason University - School of Law,

4. 138 Change and Continuity in International Antitrust under an Obama Administration
D. Daniel Sokol,
University of Florida - Levin College of Law,

5. 111 Toward a Better Competition Policy for the Media: The Challenge of Developing Antitrust Policies that Support the Media Sector's Unique Role in Our Democracy
Maurice E. Stucke, Allen P. Grunes,
University of Tennessee College of Law, Brownstein Hyatt Farber Schreck, LLP

6. 108 The Future of International Antitrust and Improving Antitrust Agency Capacity
D. Daniel Sokol
University of Florida - Levin College of Law

7. 93 The Perils of Antitrust Proliferation - The Process of 'Decentralized Globalization' and the Risks of Over-Regulation of Competitive Behaviour
Damien Geradin
Howrey, TILEC, and College of Europe

8. 75 Foreclosure, Predation and Competition on the Merits: A Comparative Analysis of Bundled Discounts
Gianluca Faella
Luiss Guido Carli University and Cleary Gottlieb Steen & Hamilton

9. 69 Managing the Financial Crisis in Europe: Why Competition Law is Part of the Solution, Not of the Problem
Damien Gerard
Chair of European Law, U C Louvain

10. 64 Double Marginalization in Two-Sided Markets
E. Glen Weyl
Harvard Society of Fellows

February 17, 2009 | Permalink | Comments (0) | TrackBack (0)

ECJ's Ruling in Beef Industry Case: Competition Law Must Be Observed at All Times

Posted by D. Daniel Sokol

Alexandr Svetlicinii, European University Institute - Department of Law addresses the ECJ's Ruling in Beef Industry Case: Competition Law Must Be Observed at All Times.

ABSTRACT: The importance of the ECJ's Beef Industry judgment is at least two-fold: (1) in relation to application of the Article 81 EC the Court clarified that the concept of "agreements by object" is not limited to the hard-core restrictions listed in the Article 81(1) EC, and confirmed the step-by-step method for assessing the compatibility of an agreement with the specified legal rules; (2) the judgment also sent a more general message to undertakings, who following the decentralization of competition law enforcement brought about by Regulation 1/2003 appeared in a position where they have to make their own assessment of the compatibility of their agreements and common policies with the competition rules. In particular, the judgment gives a clear warning to distressed industries that hard economic times do not justify anti-competitive agreements and practices.

February 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2009

Antitrust Issues Raised by the Emerging Global Internet Economy

Posted by D. Daniel Sokol

Evans David Evans (University of Chicago, University College London, LECG) analyzes Antitrust Issues Raised by the Emerging Global Internet Economy.

ABSTRACT: Web-based businesses are increasingly the subject of antitrust concerns. Plaintiffs in the United States have sued eBay for tying its online payments service to its transaction service. Multiple jurisdictions in the European Community have claimed that Apple has violated the competition laws by limiting the ability of its music player to play music from competing music stores and limiting the ability of competing music players to play music purchased from its music stores. During 2007, although the U.S. Federal Trade Commission decided not to block Google's acquisition of DoubleClick after a lengthy investigation, it expressed its intent to "closely watch these markets" involved in online advertising. The web economy poses two major challenges to competition authorities. The law and economics for analyzing the multi-sided platforms that dominate the internet sector is not well developed. At the same time the web-economy is evolving very rapidly and in ways that are sure to result in antitrust complaints and investigations. Competition authorities and courts will need to exercise great care in balancing the protection of consumers from anticompetitive behavior against causing harm from interfering in complex businesses that are both rapidly moving and not fully understood.

February 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Invention and Creativity Debated at University of Iowa College of Law

Posted by Shubha Ghosh

Kudos to the faculty and students at University of Iowa College of Law for organizing an excellent symposium on "Invention, Creativity, and Public Policy" for The Journal of Corporation Law this past weekend (Fri Feb 13 and Sat Feb 14).  I was a panelist and enjoyed the opportunity to present.  But it was even a greater delight to listen to a wide range of papers and participate in a fairly lively debate about cutting edge issues in patent, copyright, and competition policy.

The symposium began with a panel on patent law, Professor Kevin Collins of Indiana University Law School setting the high tone of the papers with a presentation on after arising technologies and the scope of the patent grant.   Professor Collins introduced the economic concepts of complements and substitutes to analyze when technologies that arise after the grant of a patent is encompassed by its literal claims.  Bottom line: complementary technologies are included while substitute technologies are not.  Professor Christoper Cotropia of The University of Richmond Law School   followed with a presentation on how to analyze patents as a real option.  Professor Cotropia explained how various aspects of patent policy (prosecution rules, litigation costs) can affect the ability of patent owners to exercise the option presented by the patent.  Professor Michael Meurer of Boston University School of Law addresses several criticisms of his recent book Patent Failure (with James Besen), particularly claims of mismeasurement of the benefits of patents.  Finally, Professor John Duffy of George Washington University Law School   showed why business method patents are not likely to go away anytime soon because of the high level of technological expertise and investment that has supported the development of financial and managerial tools since the 1980's.  The Federal Circuit's decision in State Street, he concluded, does not reflect the capture of the court by pro-patent forces but a reflection of how the field of finance and business took a technological turn.

The snow-covered Saturday morning turned everyone's attention to copyright with Professor Abraham Drassinower of The University of Toronto Faculty of Law challenging the Canadian Supreme Court's emphasis on balancing of rights in its recent copyright jurisprudence.  To determine a copyright by evoking the metaphor of balance, Professor Drassinower argued, does nothing and avoids the more difficult question of what copyright law should protect.  Professor Laura Heymann of William & Mary Law School  revived the concept of balance in her discussion of authorship in U.S. copyright law by showing that different types of authors (individual, corporate) have different incentives for creating, which should be accomodated by copyright doctrine.  Professor Anthony Reese of The University of Texas Law School examined the copyright issues raised by museum photographs of artistic images in the public domain.  While such images are legally available for access by the public, ownership over the physical art work in which the images are embodied can create impediments to access.  Photographs of such images can balance the ownership and access rights, but contemporary copyright law (particularly a New York district court opinion from about a decade ago) denies copyright protection to these photographic images.  Professor Reese proposed a statutory scheme to protect the photographs and create a mechanism for their dissemination and examined its limitations.  Finally, Professor Sara Stadler of Emory University Law School presented a particularly innovative paper on market definition in copyright, bridging the gap between the issue of market definition in antitrust law and the appeal to markets in various areas of copyright law (particularly fair use and derivative work rights).  Professor Stadler suggested that antitrust market definition used in merger analysis that focused on price changes and measurable complements and substitutes might have some application in determining when a new work or use is part of a copyright owner's protected market.  She concluded that a complementary work should constitute fair use and be outside of the market while a substitute work should not constitute fair use and hence be within the scope of the copyright owner's rights. 

Saturday afternoon concluded the symposium with a panel on Intellectual Property and Competition Policy.  Professor Thomas Cotter of The University of Minnesota Law School  made a thorough presentation on how antitrust law can limit the exercise of patent rights post-issuance in such instances as standard setting organizations.  I followed by with a paper on how courts recognize competion policy norms within intellectual property and argued that intellectual property's role as competition policy complements antitrust's in policing intellectual property.   The presentation concluded with a discussion of how the Supreme Court's 2008 decision in Quanta on use restrictions illustrates the use of intellectual property as competiton policy and some of the open questions left after the Quanta decision, particularly in light of the Federal Circuit's decision on the enforcability of use restrictions under open source licensing in  its Jacobsen v Katzer decision of 2008.  Professor Herbert Hovenkamp of The University of Iowa College of Law, the key organizer of the symposium,  presented a paper arguing for antitrust's role in policing patents post-issuance.  He discussed a number of ways in which antitrust police issued patents, including Walker-Process claims,  settlement of disputes in pharmaceutical patent cases, and patent licensing.  Professor Christopher Leslie of Chicago-Kent Law School rounded out the panel with a lively and insightful challenge to Professor Hovenkamp's distinction between antitrust's role pre- and post-patent issuance.  Professor Leslie argued for more aggressive antitrust scrutiny of patents under Walker-Process claims, the doctrine of inequitable conduct, and tying theories.  The Federal Circuit's recent decision in Dipping Dots v Mosely (reversing a Walker Process claim, but finding a patent not infringed, invalid, and unenforcable) was a large focus of discussion.  The panel, and symposium, ended with a lively discussion of Quanta and Walker-Process, providing much fodder for a follow-on symposium or two.

Thanks, personally, to the Journal and the law school for the invitation.  Look out for the symposium issue which should be an important volume for those interested in questions of intellectual property, innovation, and competiton policy.

February 16, 2009 | Permalink | Comments (0) | TrackBack (0)