Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, November 10, 2012

Competition Law in Slovakia: An Authority Viewpoint

Posted by D. Daniel Sokol

Zuzana Sabova (Antimonopoly Office of Slovak Republic, Comenius Univ.) offers Competition Law in Slovakia: An Authority Viewpoint.

ABSTRACT: Competition law was introduced in Slovakia in the early 1990s as a part of the market mechanisms aimed at the transformation from a centrally planned to a market economy. In 2011, the Antimonopoly Office of Slovakia ("Office") celebrated its 20th anniversary. The role of the institution in the economic life of the country is indisputable. Looking at both its past and present activities, the effectiveness of competition law enforcement in Slovakia can be evaluated. From the beginning of its existence Slovakian competition law followed the EU model, mainly due to the country's endeavor to join the European Union. This is visible from the wording of legislation and also from the decision-making practices of the Office. The main effort was accomplished in 2001 when the new Competition Act was adopted. The Act contained substantial changes as to the formulation of anticompetitive practices and procedural rules. Regarding the institutional framework, this Act enabled the creation of an independent authority by setting the conditions for nominating the head of the authority, fixing 5-year terms of office, and determining precise reasons when the head of the authority can be dismissed. This step significantly contributed to the independence and stability of the institution and enabled it to formulate and implement competition policy with a long-term horizon. Further amendments to the Act were introduced in 2004 when the country joined the European Union. To ensure the fulfillment of the EU requirements, mainly set by Regulation 1/2003, it was necessary to enable an effective application of the EU law in Slovakia.

The latest changes in the law reflect needs resulting from the practices of the Office; in particular, those concerning the control of concentrations, which were dealt with by introducing the SIEC test, and making procedures less burdensome and more flexible.

Clear tendencies towards the EU rules can be seen also in the decision-making practices of the Office as well as in the soft law. The Office strongly relies on the concepts and doctrines established at the EU level, but also from EU soft law, as can be seen in the Office's initiatives such as the leniency program and guidelines on setting fines, settlements, and commitment procedures, etc.

Public enforcement via the Office remains the main domain of competition law enforcement. To be exhaustive, a criminal offense connected to the antitrust prohibition stipulated by the Penal Code should be mentioned; however, it has never been used and its relevance can be disputed. Private enforcement of competition law via claims for damages is more a theoretical concept and, although some attempts have been done in this regard, one can hardly consider it to be an effective tool with deterrent effects. Due to these reasons, the following text will focus on public enforcement only.

November 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, November 9, 2012

Asian Competition Forum 8th Annual Conference, 10th and 11th December 2012, Hong Kong, “Establishing Sound Enforcement Priorities and Processes”

Posted by D. Daniel Sokol

Asian Competition Forum 8th Annual Conference

10th and 11th December 2012, Hong Kong

Establishing Sound Enforcement Priorities and Processes

 

 

There has been continued development in competition law in Asia in the last year especially in ASEAN countries. Many jurisdictions in Asia have adopted or will soon adopt a competition regime that includes a normative law and an enforcement mechanism. The next pressing issue in many countries is the enforcement agenda. Issues such as which anticompetitive practices or sectors to target, the temptation to take easy cases at the expense of more complex investigations, political interference, judicial challenges often based on procedure rather than substance, funding priorities and inter-agency rivalry. We have thus decided to adopt as the theme for our annual conference "Establishing Sound Enforcement Priorities and Processes". The conference will be held in Hong Kong on Monday 10th and Tuesday 11th December, 2012.

 

Details of Conference

Date:                                    10th and 11th
December, 2012 (Monday and Tuesday)

Time:                                   9:00
a.m. – 6:00 p.m. (Registration starts at 8:15 a.m.)

Venue:                  Hong Kong Polytechnic University, Hung Hom, Kowloon, Hong Kong

Registration fee: HK$ 1,500 / US$ 200 per day (inclusive of lunch)

 

 

Law Society of Hong Kong CPD

An application has been made to the Law Society of Hong Kong for accreditation of the conference for CPD points.

Registration

To secure your registration, please complete the attached Registration Form and return by email to Ms. Samantha Ma ([email protected]) on or before 16th November 2012.

 

Registration will be confirmed by email. For any enquiries, please contact Ms Samantha Ma by the above email or phone at (852) 2766 7130.



Confirmed speakers include:

 

Gregory SO

Secretary, CEDB, HKSAR

 

Dhanendra KUMAR

Principal Advisor, Indian
Institute of Corporate Affairs, Ministry of Corporate Affairs, Government of India (formerly Chairperson of Competition Commission of India and Executive Director of the World Bank)

 

Dr. Hassan QAQAYA

Head, Competition law and Consumer Policies Branch, UNCTAD

 

Dr. Andreas STEPHAN

Senior Lecturer in Competition Law in University of East Anglia

 

Prof. Allan FELS

Dean of the Australia and New Zealand School of Government

 

Prof. Michael JACOBS

Distinguished Research Professor of Law, DePaul University College of Law, Chicago, Illinois, United
States

 

Dr Zhaofeng ZHOU

Partner, Chance & Bridge Partners, China

 

Prof. Xianlin WANG

Vice Dean of KoGuan Law School, Shanghai Jiao Tong University, and director of Centre for Competition Law and Policy

 

Liyang HOU

Associate professor of KoGuan Law School, Shanghai Jiao Tong University

 

Mr. XU Lefu

Division Director, Anti-monopoly Bureau(AMB), Ministry of Commerce of China

 

Prof. Caron BEATON-WELLS

Professor, University of Melbourne

 

Mr. Burton ONG

Associate Professor, Faculty of Law, National University of Singapore

 

Mr. Chester TOH

Partner, Integrated Regulatory Practice, Rajah & Tann LLP, Singapore

 

Adam Nakhoda

Deputy Director, Legal & Enforcement, Competition Commission of Singapore

 

Ms. Huong Ly LUU

Associate Professor, Hanoi Law University; Ph.D candidate, National University of Singapore

 

Dr. NGUYEN Anh Tuan

LCT Lawyers, Vietnam

 

Dr May Fong CHEONG

Professorial Visiting Fellow, Faculty of Law, University of New South Wales

 

Ms Yin Harn LEE

Phd candidate at Cambridge University(IIUM)

 

Mr. Martyn HUCKERBY

Partner, King & Wood Mallesons

 

Mr Marc WAHA

Partner, Norton Rose, Hong Kong

 

Dr. Walter BECKERT

Senior Lecturer in Economics at Birkbeck College, University of London

 

Dr Simon VANDE WALLE

Fellow of the Japan Society for the Promotion of Science, University of Tokyo

 

Dr Steven Van UTYTSEL

Associate Professor, EUIJ-Kyushu Senior Research Fellow, Faculty of Law, Kyushu University, Japan

 

Prof. Toshiaki TAKIGAWA

Professor, Kansai University School of Law, Osaka, Japan

 

Mr. Angus YOUNG

Assistant Professor, Hang Seng Management College, Hong Kong

 

Prof. Francisco MARCOS

Professor of Law, IE Law School

 

Dr Andrew SIMPSON

Assistant Professor, Hong Kong Polytechnic University

 

Mr. Omar Wakil

Partner in the Competition/Antitrust Group of the Canadian law firm Torys LLP and the chair of the firm’s Foreign Investment Review Group

 

Ms Janet HUI

Partner, Jun He Law Offices, China

 

Prof. FANG Xiaomin

Professor at the Law School of Nanjing University in PR China. She is director of the German-Sino Institute of Legal Studies at Nanjing University and co-director of the German-Sino Institute of Legal Studies at Goettingen University in Germany

 

Dr Felix MEZZANOTTE

Assistant Professor, Hong Kong Polytechnic University

 

Prof. Lin Ping

Head & Professor, Department of Economics, Lingnan University

 

Ms Ninette DODOO

Head of Antitrust, China, Clifford Chance

 

Ms. Deborah HEALEY

Senior Lecturer, Faculty of Law, University of New South Wales, Australia

 

Prof. XU Shiying

Professor of Law, East China University of Politics and Law

 

Mr. Chi Hang CHIANG

PhD Candidate, Faculty of Law, University of Oxford

 

Mr. Stephen Crosswell

Head of Antitrust, Hong Kong, Clifford Chance LLP

 

Dr Stanley WONG

StanleyWongGlobal (SW Law Corporation), Vancouver, BC, Canada

 

Dr Victor HUNG

Consumer Council, Hong Kong

 

Prof. WANG Xiaoye

Professor of Law, Chinese Academy of Social Sciences, and Graduate University of Chinese Academy of Social Sciences, China

 

Dr Dina KALLAY

Counsel for Intellectual Property and International Antitrust at the Federal Trade Commission's Office of International Affairs

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Comcast v. Behrend SCOTUS oral argument

Posted by D. Daniel Sokol

You can get the transcript here.

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Third Parties Have too Many Rights in EU Competition Law – Both Under Articles 101 and 102 TFEU and Under the EU Merger Regulation – The Idea that they Should be Given Enhanced Rights to go to National Courts for Damages as Well Would Only Make Matter

Posted by D. Daniel Sokol

Beata Kozubovska, Motieka & Audzevicius PLP, Vilnius University argues Third Parties Have too Many Rights in EU Competition Law – Both Under Articles 101 and 102 TFEU and Under the EU Merger Regulation – The Idea that they Should be Given Enhanced Rights to go to National Courts for Damages as Well Would Only Make Matters Worse.

ABSTRACT: The paper discusses whether third parties have too many rights in EU competition law – both under Articles 101 and 102 TFEU and under the EU Merger Regulation. Moreover, it examines whether the idea that they should be given enhanced rights to go to national courts for damages.

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Revisiting Antitrust Limits to Probabilistic Patent Disputes: Strategic Entry and Asymmetric Information

Posted by D. Daniel Sokol

Jing-Yuan Chiou (IMT Lucca Institute for Advanced Studies) and Richard Schmidtke (University of Munich) address Revisiting Antitrust Limits to Probabilistic Patent Disputes: Strategic Entry and Asymmetric Information.

ABSTRACT: We consider separately strategic entry and asymmetric information in the design of the settlement policy governing patent disputes, with a focus on Shapiro's (2003) consumer protection rule. We show that, when a potential entrant strategically incurs an entry cost before engaging in a patent dispute, a more stringent settlement policy of deterring costly entry benefits the patent-holder and may raise static efficiency. Concerning asymmetric information, when the disputants, but not the court, learn the patent validity, we derive an ‘expectation test,’ which requires that a laxer settlement policy be coupled with higher expected patent validity under settlement.

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Adapting to the EU Requirements: Recent Evolutions in Romanian Competition and State Aid Law

Posted by D. Daniel Sokol

Oana Stefan (HEC Paris) discusses Adapting to the EU Requirements: Recent Evolutions in Romanian Competition and State Aid Law.

ABSTRACT: Since 2007, Romania is, alongside Bulgaria, one of the newest members of the European Union. Consequently, the vast majority of its institutional and legislative developments in competition and State aid are connected to the adaptation of the law to EU requirements. Romanian competition law and policy has been replicating rules, definitions, and concepts established by EU legislation or through EU case law. One example concerns the notion of "undertaking," broadly defined in the same lines as those developed by the EU Court of Justice. Consequently, commitments from the Romanian Football Federation were approved with regards to retransmission rights for matches, and the National Association of Enforcers of Judicial Decisions was fined for discriminatory practices with regards to the entry in the profession, as well as for fixing excessive prices for their services. Furthermore, according to latest amendments, antitrust legislation applies also to local or central administrative authorities.

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

A Practical Guide on How to Deal with Market Share Notification Thresholds

Posted by D. Daniel Sokol

Pedro Callol Garcia - Roca Junyent has published A Practical Guide on How to Deal with Market Share Notification Thresholds.

Download Pedro

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Co-Operating in the Development of Competition Law and Economics Academics in New Jurisdictions

Posted by D. Daniel Sokol

Christopher Townley, King's College London and Heba Shahein, explore Co-Operating in the Development of Competition Law and Economics Academics in New Jurisdictions.

ABSTRACT: This chapter is devoted to understanding the difficulties faced by young competition law and economics academics (and those considering becoming competition academics) in new jurisdictions (in this chapter, New Academics). It also asks what can be done to help, in particular, those in poorer countries.

New Academics face myriad difficulties in the developing world. They often include feelings of isolation, a lack of training (in both research and teaching), and limited infrastructure (there may be no broadband access, for example, and libraries can be sparse). So, it is often hard to persuade people to even consider academia as a career choice. It is even harder to generate interest in becoming a competition law and economics academic, partly because these disciplines are often unknown in new jurisdictions, which often means that there are few role models there. We want to help to develop research and teaching in competition law and economics in new jurisdictions. Promoting competition research should enable academics to translate the results of studies carried out elsewhere into their national contexts. We also hope that academics from developing countries will be able to come up with their own original research, which will benefit others as well. The laws developed in the West may be impossible to for new jurisdictions to enforce; but also they need different laws that address different goals. If this is true, greater efforts at translation are needed. In any event, this research should improve the insight into competition problems around the world, as well as feed directly into knowledge-based decision-making in the relevant country. This should bring with it pride and self-reliance, as well as better results. Improving the teaching in developing countries is important too. It gives these researchers a platform for testing and disseminating their ideas. This might be to help policy-makers to improve knowledge-based decision-making. It could also help to educate (future) lawyers, economists, competition authority officials, judges and civil society in general. This should mean that decisions are better and faster. This, in turn, should increase the benefits that competition can bring to these countries.

This chapter is only the start of the conversation. It discusses the management and education literature dealing with the challenges of entering academia (or considering making this leap) in developing countries. This literature enriches the experience and comments of those present at the conference. However, one key weakness of our approach is that papers and experience are tied to specific countries, universities and people. This may limit the relevance of this chapter; discussion of development issues must take into account the people and context in issue. So, before we start, a health warning: more research is needed before we act. There is a history of unsuccessful intervention in this area. Failed schemes raise skepticism in the rich world which can, ultimately, undermine the appetite for trying to help; in the least developed countries, failure can shatter lives and undermine development for years to come.

November 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

Does Merger Simulation Work? A 'Natural Experiment' in the Swedish Analgesics Market

Posted by D. Daniel Sokol

Jonas Bjornerstedt and Frank Verboven, Katholieke Universiteit Leuven - Faculty of Business and Economics have a paper on Does Merger Simulation Work? A 'Natural Experiment' in the Swedish Analgesics Market.

ABSTRACT: We exploit a natural experiment associated with a large merger in the Swedish market for analgesics (painkillers). We confront the predictions from a merger simulation study, as conducted during the investigation, with the actual merger effects over a two-year comparison window. The merger simulation model is based on a constant expenditures specification for the nested logit model (as an alternative to the typical unit demand specification). The model predicts a large price increase of 34% by the merging firms, because there is strong market segmentation and the merging firms are the only competitors in the largest segment. The actual price increase after the merger is of a similar order of magnitude: +42% in absolute terms and +35% relative to the

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Competition in Information Technologies: Standards-Essential Patents, Non-Practicing Entities and FRAND Bidding

Posted by D. Daniel Sokol

Herbert J. Hovenkamp, University of Iowa - College of Law discusses Competition in Information Technologies: Standards-Essential Patents, Non-Practicing Entities and FRAND Bidding.

ABSTRACT: Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools.

FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND commitment is not a promise to charge any particular price, but only a price that meets FRAND expectations. This permits members of a standard setting organization (SSO) to focus on technical issues and worry about the price later. Two important questions that a FRAND commitment typically leaves open is the royalty base and the royalty rate. A strong case can be made that the base should be the smallest saleable unit containing the patented technology. While that base is not entirely free from problems, it does provide a more-or-less common currency. The FRAND obligation that the rate be nondiscriminatory typically, but not always, provides a set of yardsticks for measuring the rate.

The non-practicing entity (NPE) that voluntarily declines to participate in an SSO process should generally be held to the FRAND royalty as its measure of its damages, even though its particular patents are not FRAND-encumbered. In this case a “reasonable” royalty is the royalty that the patent holder would have obtained in the competitive market in which it might have participated. The case for limiting NPE damages in this way is strongest when the NPE had actual or objectively reasonable knowledge of the SSO process but declined to participate. The case is weakest when the SSO’s processes were not well communicated to outsiders or the NPE in question was not permitted to participate.

FRAND commitments should “run with the patent,” in the sense that owners of FRAND-encumbered patents should not be able to free them simply by assigning the patents to someone else. One fundamental principle of property law is that a property owner cannot transfer away a larger interest than it owns. The entire FRAND commitment process would be worthless if patent holders were able to evade it by the simple device of assigning encumbered patents in order to remove the encumbrance.

The question of injunctive relief is only a little more complex. A FRAND commitment is on its face an offer to license to all who employ that patent in their standards-compatible product. True, the precise royalty terms are typically not specified in advance, but that entails that the FRAND royalty will be determined by reference to common indicia such as rates paid for similar technologies in the same or perhaps another situation. Further, the FRAND commitment effectively turns the royalty issues into a breach of contract claim rather than a litigated royalty claim. Permitting the owner of a FRAND-encumbered patent to have an injunction against someone willing to pay FRAND royalties is tantamount to making the patent holder the dictator of the royalties, which once again is the same thing as no FRAND commitment at all.

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

WHAT DOES THE CHICAGO SCHOOL TEACH ABOUT INTERNET SEARCH AND THE ANTITRUST

Posted by D. Daniel Sokol

Robert H. Bork (if you don't know who this guy is, you shouldn't be reading this blog) & J. Gregory Sidak (Criterion Economics) have a new paper on WHAT DOES THE CHICAGO SCHOOL TEACH ABOUT INTERNET SEARCH AND THE ANTITRUST.

ABSTRACT: Antitrust agencies in the United States and the European Union began investigating Google’s search practices in 2010. Google’s critics have consisted mainly of its competitors, particularly Microsoft, Yelp, TripAdvisor, and other search engines. They have alleged that Google is making it more difficult for them to compete by including specialized search results in general search pages and limiting access to search inputs, including “scale,” Google content, and the Android platform. Those claims contradict real-world experiences in search. They demonstrate competitors’ efforts to compete not by investing in efficiency, quality, or innovation, but by using antitrust law to punish the successful competitor. The Chicago School of law and economics teaches—and the Supreme Court has long affirmed—that antitrust law exists to protect consumers, not competitors. Penalizing Google’s practices as anticompetitive would violate that principle, reduce dynamic competition in search, and harm the consumers that the antitrust laws are intended to protect.

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Lithuanian Competition Authority Follows the Path to Prioritization

Posted by D. Daniel Sokol

Dina Lurje (Lithuanian Competition Authority) describes how the Lithuanian Competition Authority Follows the Path to Prioritization.

ABSTRACT: The Lithuanian Competition Authority ("Competition Council"), having recently celebrated its 20th anniversary, has joined other competition enforcers around the world and, in July 2012, released its Notice on Agency's Enforcement Priorities ("Enforcement Priorities Notice").

The reasoning behind the adoption of the Enforcement Priorities Notice was the intent to solve a conundrum faced by the Competition Council. Because of the ever-increasing number of investigations within the authority, some strategically important investigations were not carried out or were not allocated enough resources. Such a conundrum stems from a combination of factors, including the nearly 1200 complaints alleging anti-competitive practices in breach of the Law on Competition received by the authority in 2011, combined with both a statutory duty to reply to any complaint within a 30-day period and limited human resources. The Enforcement Priorities were, therefore, adopted to allow for an effective and rational allocation of resources on matters having the greatest public interest, rather than minor investigations unlikely to bring benefits to consumers.

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Commission v. Gazprom: The antitrust clash of the decade?

Posted by D. Daniel Sokol

Alan Riley (City University London) has a piece on Commission v. Gazprom: The antitrust clash of the decade?

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Melbourne Law Masters 2013 Competition and Consumer Law specialisation

Posted by D. Daniel Sokol

Melbourne Law
Masters 2013
Competition
and Consumer Law specialisation
The Melbourne Law School, recently ranked in the top ten law schools in the world*, is the only law school in the Asia Pacific region to offer a comprehensive masters program in the important challenging field of competition and consumer law.
Details of the 2013 program are now available and can be viewed here. There will be nine subjects in the Competition and Consumer Law specialty spanning the areas of competition economics, cartels, mergers and consumer law, amongst others.  For the first time the program will feature a subject dedicated to East Asian Competition Policy and Law, taught by Professor Mark Williams from Hong Kong.
Competition and Consumer Law subjects can be credited to a range of courses, including the Graduate Diploma in Competition
Law
or another specialty degree such as the Masters of Commercial Law. All subjects can also be taken as a single subject, with or without assessment, by suitably qualified applicants who do not wish to take a full degree (information about selection criteria is here). All of the subjects in this specialty are scheduled intensively over 5 days in Melbourne.
Taught by experts in this field from around the world, all classes are small and interactive, giving students the opportunity to network with teachers and other students who come from practice, government and competition authorities. International students have additional opportunities such as professional mentoring, internships and research centre affiliation (see the Competition Law & Economics
Network).
The Competition and Consumer Law specialty is part of the world class Melbourne Law Masters program. In 2013 the program offers 22 specialties (including new specialties in Energy Law and Environmental Law) and 167 subjects, taught by an eminent faculty that includes 57 international visiting lecturers. A copy of the 2013 Prospectus is readily available on request: [email protected].

Date Time Code Subject Lecturers

Semester 1: Intensive subjects

13–19 February

(excluding the weekend)

9 am–4 pm LAWS70010 Economics for Competition Lawyers Dr Philip Williams

10–16 April

(excluding the weekend)

9 am–4 pm LAWS70050 Cartels Professor Caron Beaton-Wells, Adjunct Professor

Brent Fisse

10–16 April

(excluding the weekend)

9.30 am–5 pm LAWS70046 Trade Marks and Unfair Competition Ms Janice Luck

3–7 June 9 am–4 pm LAWS70380 Australian Consumer Law Dr Jeannie Paterson, Ms Ros Grady

Semester 2: Intensive subjects

8–12 July 1–6.30 pm LAWS70437 Sports and Competition Law: An

International and Comparative Analysis

Professor Stephen Ross

15–19 July

(excluding the weekend)

9.30 am–5 pm LAWS70419 Fundamentals of Regulation Professor Colin Scott

24–30 July

(excluding the weekend)

9 am–4 pm LAWS70347 Merger Regulation under

Competition Law

Mr Bill Reid, Professor Michael Jacobs

23–29 October

(excluding the weekend)

9 am–4 pm LAWS70416 East Asian Competition Policy and Law Professor Mark Williams

6–12 November

(excluding the weekend)

9.30 am–5 pm LAWS70046 Trade Marks and Unfair Competition Ms Janice Luck

13–19 November

(excluding the weekend)

9.30 am–5 pm LAWS70385 Corporate and White Collar Criminal Law Associate Professor Jeremy Gans

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Rebooting the Bean

Posted by D. Daniel Sokol

Daryl Lim, The John Marshall Law School explains Rebooting the Bean.

ABSTRACT: This Article discusses how the advent of genetically modified seeds challenge patent and antitrust policy norms, illustrated most vividly by the patent license restrictions employed by the chief purveyor of this seed technology – Monsanto Company – and the litigation surrounding those restrictions. The Federal Circuit has repeatedly endorsed Monsanto's claim against farmers who use its seeds on the basis that its rights continue in the progeny seeds bearing that technology. Against the Solicitor General's advice, the Supreme Court has recently accepted a farmer's petition to consider if this view of patent exhaustion is contrary to the Court's own decision in Quanta. The outcome of that decision could have profound effects on other technologies with self-replicating features. Monsanto has also attracted the scrutiny of the Justice Department and is defending itself against antitrust suits by DuPont alleging that its prohibitions against trait stacking are anti-competitive. The Article considers one of the most critical issues facing the agricultural sector today: have courts gone too far in protecting the patent rights of pioneer biotech companies like Monsanto? The discussion looks at how parallel litigation in industries as diverse as software and pharmaceuticals might inform the debate on balancing the rights of patentees of agricultural inventions against the rights of growers fighting to preserve their time honored rights and competitors locked in a battle for agricultural supremacy for the crop fields of America and beyond.

November 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 7, 2012

Endogenous Mergers and Collusion in Asymmetric Market Structures

Posted by D. Daniel Sokol

Mattias Ganslandt, Centre for European Law and Economics, Research Institute of Industrial Economics, University of Colorado at Boulder - Department of Economics, Lars Persson, Research Institute of Industrial Economics (IFN), Centre for Economic Policy Research (CEPR), Helder Vasconcelos, University of Bocconi - Innocenzo Gasparini Institute for Economic Research (IGIER) and Department of Economics, Centre for Economic Policy Research (CEPR) have written on Endogenous Mergers and Collusion in Asymmetric Market Structures.

ABSTRACT: Recent empirical evidence shows that cartels are often asymmetric, while cartel theory suggests that firm symmetry is conducive to collusion. Including an indivisible cost of cartelization, we show that medium asymmetric market structures are more conducive to collusion, since they balance the small firms' incentives to stay in the cartel against the need to cover the cartel leaders' indivisible cartelization cost. Using an endogenous merger model, we also show that forbidding mergers leading to symmetric market structures can induce mergers leading to asymmetric market structures with a higher risk of collusion. Current antisymmetry merger policy can thus be counterproductive.

November 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Kosher Competition

Posted by D. Daniel Sokol

The Jerusalem Post has an interesting story about the cartel over Kosher certification. It reports:

Greed, profiteering and fraud are no strangers to the kosher supervision business. While keeping kosher might be a mitzva, setting up the apparatus to provide consumers and restaurant-goers with food that meets Orthodox standards is generally driven by a desire to make money. As in any business, there are straight and crooked characters.

In what appears to be a sincere effort to improve the way the supervision is performed, a group of Jerusalemites – restaurateurs, rabbis and activists – have banded together to break the Chief Rabbinate’s monopoly over it. Restaurants that serve a religious clientele – but are not certified by the Chief Rabbinate of Israel – are independently keeping kosher.

The story goes on to mention that competition and the break up of the monopoly is the solution. I agree.

November 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Modernization of the Antitrust Law in the Russian Federation

Posted by D. Daniel Sokol

Galina Ivanovna Martynenko, Plekhanov Russian University of Economics analyzes Modernization of the Antitrust Law in the Russian Federation.

ABSTRACT: The paper analyzes the questions connected with need of further modernization of the antitrust law in the Russian Federation.

November 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Competition and Monopoly Policy

Posted by D. Daniel Sokol

Hugues Bouthinon-Dumas, ESSEC Business School and Frederic M. Marty, Research Group on Law, Economics and Management provide an overview of Competition and Monopoly Policy. ABSTRACT: Firm strategies cannot be analyzed without taking into consideration the legal framework which governs the relationships between economic agents, especially competition law. As a consequence, firms have to manoeuver through a complex universe, taking account of both the rules of the economic game and the legal ones.

Our purpose is to analyze the legal treatment of anticompetitive practices (agreements and concerted practices that restrict competition and abuse of a dominant position), which are at the heart of modern competition law (in the American context generally referred to as 'antitrust law' and in the European one as 'competition law'). However, we must keep in mind that competition law also covers the control of vertical restrictive practices, merger policy), control of state aid and, in some countries, the prohibition of unfair competition practices. Considering competition goals is essential for understanding the enforcement of competition law.

Even if the wording of the general competition rules seems to be fairly similar, their enforcement may vary considerably among countries (and across time periods), revealing differences in their underlying principles and purposes. Therefore, it is essential to identify the intentions of the law-makers and the priorities of competition authorities. Competition policies and decisional practices are closely dependent on various and sometimes conflicting views related to what competition should be and how firms should develop and interact. This chapter is focused on the examples of the United States of America and the European Union. and points to their divergences and convergences.

November 7, 2012 | Permalink | Comments (0) | TrackBack (0)

What Does a Second Obama Term Mean for Antitrust?

Posted by D. Daniel Sokol

Last night's victory by Obama has fewer antitrust implications relative to other areas of law (financial institutions, labor and employment, health care, etc.). Overall, there will be significant continuity. Where do I predict that the election matters? The FTC case against Google will go forward.  In terms of enforcement priorities, I think that we will see more antitrust-health care related enforcement. In Bill Baer, we will have an excellent new head of DOJ Antitrust - one of the super elite practitioners. It is not clear how much longer Leibowitz will remain at the FTC and who the successor will be. Do you go with an existing Commission (Brill or Ramirez) or someone new for the Chair? Both of the existing Commissioners have their strengths and I cannot begin to speculate who a new pick might be or how long Leibowitz will stay.  My hope is that the next Democratic pick for the FTC (either at Commissioner or Chairman position) is someone who has some IP/innovation experience. 

November 7, 2012 | Permalink | Comments (0) | TrackBack (0)