Sunday, January 8, 2017
Call for paper - 12th ASCOLA Conference, COMPETITION LAW FOR THE DIGITAL ECONOMY, 15 June – 17 June 2017 Stockholm
12th ASCOLA Conference
COMPETITION LAW FOR THE DIGITAL ECONOMY + WORKSHOP ON COMPETITION LAW ISSUES
15 June – 17 June 2017
CALL FOR PAPERS
The Academic Society for Competition Law (ASCOLA) will hold its 12th annual conference from Thursday 15 June to Saturday 17 June 2017 at Stockholm University, Law Faculty, Sweden.
"Competition Law for the Digital Economy”
The digital economy is gradually gaining traction. A broad variety of technological developments, including the introduction of Internet of Things, artificial intelligence and Big Data play a role.
What makes the digital economy different from the Old Economy or, even, from other developments of the New Economy and what are the implications for the application of competition rules? How does competition law interact with other legal regimes, like data protection / privacy rules, unfair trading laws and regulatory regimes? At the 12th Ascola conference, we would like to reflect systematically and critically on these questions, including issues like non-human created cartels, perfect discrimination and competition, competition law issues raised by e-payment-systems, the sharing economy, self-driving cars, the increasing role of data (Big Data, Open Data, data mining etc.) and the like.
The conference will be structured around five major themes. We invite scholars to propose papers addressing one or more of the following themes:
(1) General Perspectives on Competition Policy for the Digital Economy: What are the new challenges created by the Digital Economy? Is the Digital Economy mainly self-regulated? What role for standardization in the digital economy?
(2) Application of Traditional Tools to the Digital Economy: Should markets and thus market power be defined differently in the digital world? How does the Digital Economy affect market analysis? How should competition law treat firms that have developed a new technology that has not yet been used in the market? How should multi-sided markets affect competition law analysis? How should we take into consideration efficiencies in the digital economy?
(3) Conduct that Violates Antitrust: Should abusive behaviour be judged differently in the Digital Economy? Are there new forms of abusive behaviour that arise in such industries, or should established doctrines be applied differently? How should we deal with aspects of the sharing economy or with instances in which Artificial Intelligence creates or facilitates conduct that might violate competition law? Do price-tracking algorithms violate competition law?
(4) The interface between data protection rules, consumer protection rules and/or other sector specific rules and competition law: What should be the relationship between such rules? Should competition law be granted primacy in certain situations? Do we need new institutional arrangements in order to coordinate data protection, consumer protection and competition law enforcement?
(5) Remedies to be imposed in case of restriction on digital markets: Do the special characteristics of the digital economy affect the application of remedies, and if so- how? When should behavioural and/or structural remedies be applied, if at all? Should specific procedural guarantees be put in place?
The conference topic will not be limited to any specific jurisdiction but aims at having a discussion on the evolution of these issues throughout the world. The papers should potentially facilitate a discussion with regard to similar problems encountered worldwide.
During the conference, a workshop will be organised. As in previous years, the workshop will take the form of parallel sessions allowing interested scholars to present their most recent research on any relevant topic of competition law. The workshop is open to any topic of interest (including jurisdiction-specific topics). Thus, submissions do not have to relate to the themes of the conference. However, we are hoping for two specific panels:
One panel in the workshop dedicated to agency structure and institutional design. In this panel, we will discuss the importance of institutional design and what impact the choice of agency structures may have on the consistency, effectiveness and fairness of competition law enforcement, and institutional developments worldwide.
Moreover, an additional panel panel will be dedicated to competition law for the digital economy in developing countries. Should competition law be used specifically in developing countries when dealing with the digital economy?
The papers for the workshop will undergo the same evaluation process applicable to papers s general theme. No financial assistance will be available for participation in the workshop.
Submission of Papers
ASCOLA members are invited to submit DRAFT PAPERS or EXTENDED ABSTRACTS (minimum of 8 pages) no later than February 1 2017. Authors will be informed by March 15 2017, by the latest, whether they have been selected for the conference. The papers will be evaluated by an ‘Evaluation Committee’. Non-members can submit papers, and take advantage of that opportunity to apply for membership.
Authors of selected papers will then have up to May 15, 2017 to submit their papers for the conference.
The organisers retain the right to exclude a potential author whose paper does not meet the quality requirements set for the conference.
Venue for publication of the conference papers
Provided their author(s) agree(s) thereto, the papers will be published on the conference webpage. In addition, the authors of the selected papers relating to the topic of the conference will have a choice to submit their papers to an issue of the Journal of Antitrust Enforcement potentially dedicated to ASCOLA’s papers or to a book collection published by Edward Elgar. The editors might need to make a selection based on quality, should either venue be more popular than the number of papers that can be published therein.
We have received a generous grant from the Swedish Competition Authority, which will make it possible for speakers at those parts of the conference dedicated to the general theme to be fully reimbursed for travel and hotel expenses. The conference itself is free of charge for all ASCOLA members, including coffee, lunches and dinner.
Speakers for the workshop are expected to cover their costs for travel and hotel expenses but ASCOLA will provide full or partial scholarships, depending on available funds, to those who have been selected for the workshop and are showing that they cannot finance their participation otherwise. Decisions on scholarships will be taken by a ‘Scholarship Committee’.
Two awards will potentially be given during the conference.
- A Best Junior Paper Award will be delivered for the best contribution among those submitted by authors not older than 35 years. In order to be eligible for this award, scholars should specifically state their date of birth at the time of submission.
- An Award for Distinguished Services to Ascola will be given out to one or several Ascola members who have made a substantial contribution to the development of the association.
The email address for the conference is: email@example.com.
Papers as well as all questions, comments or correspondence can be directed to this address.
ASCOLA--THE place to showcase competition law scholarship!
Guest post by Michal Gal
I am writing to you in my new role as the President of ASCOLA. ASCOLA is in international organization of competition law scholars (see http://www.ascola.org/). It was founded 11 years ago by Prof. Josef Drexl, and since then has increased its membership to approximately 360 members worldwide. While many members are European, many others come from all other parts of the world, whose main interest and occupation is the research of competition law issues. I invite competition law scholars to join, and to submit papers to the yearly conference (call for papers is attached).
What does ASCOLA have to offer? It offers a unique opportunity to meet established competition law scholars from around the world. In one conference, you can meet many interesting scholars that you might not have come across otherwise, which might offer different points of view on shared topics. It also offers an environment in which competition law issues are discussed at a high level among scholars and researchers. This is mainly done though its yearly conference (this year in Stockholm, Sweden on June 15-17, 2017, with a focus on digital markets), and several more local events. In the near future digital discussion groups will also be created.
How to join? ASCOLA membership is based on academic achievements in the fields of competition law and regulation. To join one can download an application form and submit it through the website, or send it to me. The application should then be approved by the board, based on the academic achievements. Young scholars can apply to join as junior members.
I invite the competition law scholars among you to join ASCOLA and to take part in this year's conference! If you have any questions please do not hesitate to contact me, Prof. Michal Gal (firstname.lastname@example.org)
Friday, January 6, 2017
Two-Sided Market Definition and Competitive Effects for Credit Cards After United States v. American Express
J. Gregory Sidak, Criterion & Robert D. Willig, Princeton analyze Two-Sided Market Definition and Competitive Effects for Credit Cards After United States v. American Express.
ABSTRACT: In September 2016, the U.S. Court of Appeals for the Second Circuit issued a decision that recognized and applied important economic principles concerning the antitrust analysis of single-firm conduct in two-sided markets. The Second Circuit reversed a February 2015 decision of the U.S. District Court for the Eastern District of New York that found Amex’s “non-discriminatory provisions” (NDPs), which prohibited merchants from steering customers toward using other credit cards that charge lower merchant fees, unreasonably restrained trade and violated section 1 of the Sherman Act. Specifically, the district court found that the government had shown by a preponderance of the evidence that Amex’s use of NDPs created an environment in which credit-card networks had little incentive to lower merchant fees, which allegedly restricted interbrand competition among those networks. The Second Circuit, however, found that the district court’s analysis focused erroneously on only the merchant side of the market. Consequently, the Second Circuit reversed the district court’s conclusions that Amex possessed significant market power and that its NDPs had an actual adverse effect on competition as a whole. In a two-sided market, network externalities exist between the two sides. The value that a consumer on one side of the market derives from her consumption of the good or service increases as the number of consumers on the other side of the market increases. Hence, the proper definition of a two-sided market must focus on how a hypothetical monopolist’s small but significant and nontransitory increase in price (SSNIP) on one side of the market would affect demand on both sides of the market. Similarly, a two-sided market analysis is necessary to examine the effects that the challenged conduct has on market competition. Examining only one side of the market would necessarily distort the outcome of that analysis and could condemn legitimate business conduct that enhances, rather than decreases, consumer welfare.
Koren W. Wong-Ervin, George Mason University, Scalia Law School - Global Antitrust Institute, Joshua D. Wright, George Mason University - Antonin Scalia Law School, Bruce H. Kobayashi, George Mason University - School of Law and Douglas H. Ginsburg, U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty examine Extra-Jurisdictional Remedies Involving Patent Licensing.
ABSTRACT: Extra-Jurisdictional Remedies Involving Patent Licensing by Koren W. Wong-Ervin, Joshua D. Wright, Bruce H. Kobayashi, Douglas H. Ginsburg :: SSRN
In the last several years, competition agencies around the world have imposed or considered imposing extra-jurisdictional remedies on patent holders, particularly owners of standard-essential patents (SEPs) upon which the patent holder has made a commitment to license on fair, reasonable, and non-discriminatory (FRAND) terms. For example, in January 2013, the U.S. Federal Trade Commission (FTC) entered into a consent agreement with Motorola Mobility and its parent, Google, that, except in limited circumstances, prohibits the companies worldwide from seeking injunctive relief against infringers of any FRAND-assured SEP in its global portfolio. Similarly, the Korea Fair Trade Commission and the Taiwan Fair Trade Commission are reportedly considering imposing worldwide restraints on Qualcomm’s enforcement of its global patent portfolio in order to remedy alleged competition violations involving the company’s patent licensing practices.
Imposing worldwide remedies can conflict with principles of international comity and result in significant substantive conflicts with the antitrust agencies of other countries given the wide variety of approaches taken globally on antitrust matters involving intellectual property rights (IPRs), particularly with respect to honoring an IPR holder’s core right to exclude. This has the potential to produce significant negative effects on competition and welfare, particularly if conduct that is widely considered to be generally procompetitive is the object of the worldwide prohibition. Even when attacking universally condemned activity such as price fixing, global remedies risk overdeterrence when national authorities do not coordinate to adjust the penalties they impose. Moreover, as explained below, extra-jurisdictional remedies are likely unnecessary to resolve any alleged harm to consumers in the jurisdiction imposing them.
Each competition agency forgoing global remedies does not prevent competition law solutions to global harms, and is appropriate to mitigate the risk of overdeterrence. Honoring principles of comity also can mitigate a race to the bottom in competition law enforcement by preventing the lowest common denominator approach to competition law remedies from governing across the board. Indeed, some, including officials at the highest levels of the U.S. government, have raised concerns that foreign governments may be “using numerous mechanisms, including [antitrust laws] to lower the value of foreign-owned patents” in order to benefit those within their countries who implement foreign technology ; that is, the competition authority may be enforcing competition law not solely to protect their consumers from potentially anticompetitive licensing practices, but also to benefit local implementers or a “national champion” in a way that is inconsistent with the procompetitive goals of the competition laws of other jurisdictions. While competition officials across the globe have emphatically denied such claims, imposing welfare reducing global remedies on patent licensing, in addition to reducing competition and welfare, will also draw increased criticism and threaten to harm an agency’s credibility with stakeholders, the international antitrust community, and the public.
This article discusses the various approaches taken thus far, as exemplified by four recent decisions: one by the FTC against Google/MMI; two by the European Commission (DG Comp) against Motorola and Samsung, respectively; and one by China’s National Development and Reform Commission (NDRC) against Qualcomm. In contrast with the FTC’s investigation, the latter three limit remedies to the patent holder’s domestic practices in the licensing of their domestic patents (i.e., activity and patents within the territory of the investigating authority), illustrating nicely remedies that are consistent with principles of international comity.
Anne C Witt has a new book on The More Economic Approach to EU Antitrust Law.
BOOK ABSTRACT: The More Economic Approach to EU Antitrust Law(Hart Studies in Competition Law): Anne C Witt: Hart Publishing In the late 1990s, the European Commission embarked on a long process of introducing a 'more economic approach' to EU Antitrust law. One by one, it reviewed its approach to all three pillars of EU Antitrust Law, starting with Article 101 TFEU, moving on to EU merger control and concluding the process with Article 102 TFEU. Its aim was to make EU antitrust law more compatible with contemporary economic thinking.On the basis of an extensive empirical analysis of the Commission's main enforcement tools, this book establishes the changes that the more economic approach has made to the Commission's enforcement practice over the past fifteen years. It demonstrates that the more economic approach not only introduced modern economic assessment tools to the Commission's analyses, but fundamentally changed the Commission's interpretation of the law. Emulating one of the key credos of the US Antitrust Revolution thirty years earlier, the Commission reinterpreted the EU antitrust rules as aiming at the enhancement of economic consumer welfare only, and amended its understanding of key legal concepts accordingly. This book argues that the Commission's new understanding of the law has many benefits. Its key principles are logical, translate well into workable legal concepts and promise a great degree of accuracy. However, it also has a number of serious drawbacks as it stands. Most worryingly, its revised interpretation of the law is to large extents incompatible with the case law of the European Court of Justice, which has not been swayed by the exclusive consumer welfare aim. This situation is undesirable from the point of view of legal certainty and the rule of law. - See more at: http://www.bloomsburyprofessional.com/uk/the-more-economic-approach-to-eu-antitrust-law-9781849466967/#sthash.nOwP1a3y.dpuf
Thursday, January 5, 2017
Marek Martyniszyn, Queen’s University examines Belfast Foreign States’ Amicus Curiae Participation in U.S. Antitrust Cases.
ABSTRACT: Foreign states’ amicus curiae briefs submitted before the U.S. courts are a special type of pleading. This article analyzes such submissions made in U.S. antitrust cases during the period 1978 to 2015, identifying which foreign nations used amicus briefs to present their views and what sort of issues attracted their attention. This piece examines also the issue of deference due to such filings, arguing that while foreign states’ submissions should be treated respectfully, they do not warrant a dispositive effect. Furthermore, this article outlines the practice of filing, explaining the shift from diplomatic correspondence towards amicus curiae submissions and the creation of a niche market of authoring them. It also indicates general trends in relation to stages of filings and the degree of their prevalence. Some broader comments are offered on the functions of foreign nations’ amicus filings and their contribution to the ongoing development of competition law and policy internationally.
Pedro Caro de Sousa, University of Oxford - Lady Margaret Hall; University of Reading; Organization for Economic Co-Operation and Development (OECD) explores Free Movement and Competition in the European Market for Pharmaceuticals.
ABSTRACT: Very few industries are as profoundly influenced by regulation as the pharmaceutical industry. All aspects of the life-cycle of new drugs are regulated, from patent application, to marketing approval, commercial exploitation, patent expiration and competition with generics. The nature of demand for drugs, the identity of drugs brought to market, and the nature of competition in the drug market over time are all shaped by regulation. Throughout much of the world, administrative regulation, rather than competition policy, dominates efforts to afford consumers and governments adequate access to affordable drugs.
As a result, the nature of competition in this market is sui generis. A significant number of infringements to competition law in this sphere across the world are concerned with practices that seek to take advantage of or manipulate the regulatory framework, including misuses of the patent system (e.g. ever-greening or patent clustering), spreading misleading information or inducing product switching, among others. A proper understanding of how competition law works in this area requires a solid knowledge of the structure of the market and its regulation. In the European context, any such analysis must also take into account free movement law, which provides a regulatory underpinning for integrated European markets in pharmaceutical products while also acting as a parallel tool to competition law in promoting and deepening market integration.
This chapter will provide an overview of free movement cases on pharmaceuticals, with a view to frame such case law within the European regulatory framework and to identify its impact on competition law enforcement. It is structured as follows: a first section will provide an overview of the structure of the European market for pharmaceuticals, including the basic European regulatory framework; a second section will review the case law on free movement and pharmaceuticals; and a last section will detail how the basic pharmaceutical regulatory framework, free movement law and competition law interact to determine the shape of European pharmaceutical markets.
Licensing and Price Competition in Tied-Goods Markets: An Application to the Single-Serve Coffee System Industry
Pradeep K. Chintagunta, University of Chicago, Marco Shaojun Qin, University of Minnesota - Carlson School of Management, and Maria Ana Vitorino, University of Minnesota - Carlson School of Management model Licensing and Price Competition in Tied-Goods Markets: An Application to the Single-Serve Coffee System Industry.
ABSTRACT: We develop a structural model of demand and supply for tied-goods which we estimate using aggregate data from the single-serve coffee system industry. We use the parameter estimates to quantify the impact of licensing on equilibrium prices and profits for firms in the industry. In particular, we look at the decision to allow other firms to sell components (coffee pods) that are compatible with a firm’s primary good (coffee machines) by licensing the use of its patents. We solve for the counterfactual market equilibrium in which one of the market leaders enters a licensing agreement with one of the competitor brands; with the latter brand only selling compatible coffee pods and not the machines. We show the existence of a range of royalty rates under which firms could potentially reach a beneficial licensing agreement. In addition, we find that the relationship between the licensee’s profits and the royalty rate is not always decreasing. Finally, we find that, within the set of royalty rates in which licensing benefits both brands, the licensing agreement is associated with less price dispersion in the aftermarket (coffee pods), and with lower prices of the primary good (coffee machines) relative to the non-licensing scenario.
John M. Connor, Purdue University; American Antitrust Institute (AAI) describes International Cartel Stats: A Look at the Last 26 Years.
ABSTRACT: This article provides extracts and an interpretive discussion of the data in the private international cartels (PIC) data set. PIC is a large sample of legal-economic information on private international “hardcore” cartels. It summarizes selected cartel statistics from the July 2016 edition of PIC, i.e., cartels prosecuted over the past 26 years. In particular, I present aggregate statistics on numbers, affected sales, damages, corporate penalties, and individual fines and incarceration. Broad geographic differences are highlighted.
Wednesday, January 4, 2017
Jan M. Rybnicek, Freshfields Bruckhaus Deringer LLP and Laura C Onken, Freshfields Bruckhaus Deringer LLP ask A Hedgehog in Fox's Clothing? The Misapplication of GUPPI Analysis.
ABSTRACT: Merger analysis in the United States has witnessed significant improvement over the last 50 years. The antitrust agencies steadily have moved away from a rigid step-by-step approach that focuses on counting the number of firms in a market to assess whether a proposed transaction is likely to substantially lessen competition. In place of this simplistic analytical framework, the agencies have shifted toward a more sophisticated evidence-based method that is grounded in modern economics and that employs a variety of new tools to determine a merger’s likely competitive effects. Among the most significant changes is the discussion of the value of diverted sales as part of unilateral price effects analysis and the endorsement of the Gross Upward Pricing Pressure Index ("GUPPI"). In this paper we assess how the GUPPI has been applied in modern merger analysis and whether it truly has lived up to its promise. We argue that the GUPPI regularly fails to live up to its promise for two principal reasons: (1) the GUPPI all too often is based on inaccurate or incomplete data and (2) there is insufficient guidance to allow the business community and the antitrust bar to draw reliable conclusions about how the GUPPI will be incorporated into the antitrust agencies’ enforcement decisions. As a result, GUPPI often fails to deliver the more rigorous and effects-based analysis we expect under modern merger review and instead reverts to an outdated focus on market concentration.
2017 ANTITRUST WRITING AWARDS: Votes for the best antitrust articles (and most innovative soft laws) – NOW OPEN
Yogesh Pai, National Law University Delhi, Centre for Innovation, IP and Competition (CIIPC) and Nitesh Daryanani, Centre for Innovation, Intellectual Property and Competition Patents and Competition Law in discuss India: CCI's Reductionist Approach in Evaluating Competitive Harm.
ABSTRACT: The objective of this paper is to examine the CCI’s reasoning and approach in patent – related cases, in light of (i) the legislative framework governing competition and patent law in India, (ii) the economic theories that govern the intersection between antitrust and patent law, and (iii) the manner in which competition agencies in comparative jurisdictions have dealt with similar agreements and conduct by a patent holder.
Part 1 of this paper deals with an analysis of the distinction between sections 3 and 4 of the Competition Act 2002, in light of the CCI’s tendency to conflate issues pertaining to abuse of dominance and evaluation of anti-competitive agreement involving patents. Part 2 deals with constraints on pricing imposed in several CCI rulings. Part 3 deals with nonprice licensing restrictions as constituting abuse of dominance. Part 4 deals with cases involving a refusal to deal where products are protected by IP rights or proprietary technologies. Part 5 deals with the practice of price discrimination in unified systems markets dominated by intellectual property.
John Asker, Chaim Fershtman, Jihye Jeon, Ariel Pakes examine The Competitive Effects of Information Sharing.
ABSTRACT: We investigate the impact of information sharing between rivals in a dynamic auction with asymmetric information. Firms bid in sequential auctions to obtain inputs. Their inventory of inputs, determined by the results of past auctions, are privately known state variables that determine bidding incentives. The model is analyzed numerically under different information sharing rules. The analysis uses the restricted experience based equilibrium concept of Fershtman and Pakes (2012) which we refine to mitigate multiplicity issues. We find that increased information about competitors’ states increases participation and inventories, as the firms are more able to avoid the intense competition in low inventory states. While average bids are lower, social welfare is unchanged and output is increased. Implications for the posture of antitrust regulation toward information sharing agreements are discussed.
Matthew E. Kahn and Jerry Nickelsburg offer An Economic Analysis of U.S Airline Fuel Economy Dynamics from 1991 to 2015.
ABSTRACT: Airline transport generates a growing share of global greenhouse gas emissions but as of late 2016, this sector has not faced U.S. fuel economy or emissions regulation. At any point in time, airlines own and lease a set of durable vehicles and have invested in human and physical capital and an inventory of parts to maintain these vehicles. Each airline chooses whether to scrap and replace airplanes in their fleet and how to utilize and operate their fleet of aircraft. We model these choices as a function of real jet fuel prices. When jet fuel prices are higher, airlines fly fuel inefficient planes slower, scrap older fuel inefficient planes earlier and substitute miles flown to their more fuel efficient planes.
Tuesday, January 3, 2017
Carrie Colla, Julie Bynum, Andrea Austin, and Jonathan Skinner analyze Hospital Competition, Quality, and Expenditures in the U.S. Medicare Population.
ABSTRACT: Theoretical models of competition with fixed prices suggest that hospitals should compete by increasing quality of care for diseases with the greatest profitability and demand elasticity. Most empirical evidence regarding hospital competition is limited to heart attacks, which in the U.S. generate positive profit margins but exhibit very low demand elasticity – ambulances usually take patients to the closest (or affiliated) hospital. In this paper, we derive a theoretically appropriate measure of market concentration in a fixed-price model, and use differential travel-time to hospitals in each of the 306 U.S. regional hospital markets to instrument for market concentration. We then estimate the model using risk-adjusted Medicare data for several different population cohorts: heart attacks (low demand elasticity), hip and knee replacements (high demand elasticity) and dementia patients (low demand elasticity, low or negative profitability). First, we find little correlation within hospitals across quality measures. And second, while we replicate the standard result that greater competition leads to higher quality in some (but not all) measures of heart attack quality, we find essentially no association between competition and quality for what should be the most competitive markets – elective hip and knee replacements. Consistent with the model, competition is associated with lower quality care among dementia patients, suggesting that competition could induce hospitals to discourage unprofitable patients.
Conor Quigley and Suzanne Rab have a new book on Hong Kong Competition Law.
BOOK ABSTRACT: This important new book provides a substantive introduction to Hong Kong competition law contained in the new Competition Ordinance as supplemented by the Competition Commission's Guidelines. Reference is also made to the most important case law concerning competition rules in other jurisdictions, in particular the European Union, from which the Hong Kong competition rules draw inspiration. Hong Kong Competition Law also sets out fully the procedural and enforcement rules before the Competition Commission and the Competition Tribunal. Specific sections deal with the application of competition law to the major economic sectors in Hong Kong: construction, energy, finance, retail, telecommunications and transport. A final chapter provides a comparative survey of competition law in China, Japan and South Korea.
Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future
Wouter P. J. Wils, King's College London; European Commission summarizes Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future.
ABSTRACT: This paper provides a short history of private enforcement of EU antitrust law and its relationship with public enforcement, from the 1957 EEC Treaty over Regulation 17 and Regulation 1/2003 until Directive 2014/104 and the current outlook.
Does Merger Enforcement Depend on the Portion of the Merger Associated with the Competitive Concerns?
Malcolm B. Coate, U.S. Federal Trade Commission (FTC) and Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) ask Does Merger Enforcement Depend on the Portion of the Merger Associated with the Competitive Concerns?
ABSTRACT: Most mergers involve multiple markets. The potential for settlement can vary by the fraction of the overall deal attributable to the markets of concern. (i.e., by the “overlap”). If an antitrust agency challenges a merger having only a small overlap, negotiating a settlement is very likely; but if the entire transaction is at issue, a challenge decision often leads to litigation. Regulators, antitrust attorneys, and expert economists have long wondered if the degree of overlap influences upon the agency’s challenge decision, because settlement and litigation impose disparate costs (including litigation risks and time-delays) on the agency and firms. Given over 20 years of experience with modern merger analysis, it is possible to address this question with several empirical models: (1) a two-stage estimation of the settle-challenge process, (2) decomposition analyses focused on matters exhibiting either high or low overlaps, and (3) statistical matching analyses. These models predict differences of 13 to 19 percentage points between the challenge probabilities of mergers exhibiting high and low overlaps. The difference suggests the potential for over- or under-enforcement. Comparing the FTC policy to that of the court quantifies this potential. The exact magnitude depends on the assumptions used to interpret the evidence. One set of assumptions suggests less enforcement when the overlap is high, while another set of assumptions predicts more enforcement when the overlap is low.
Monday, January 2, 2017
Hyeokkoo Eric Kwon, KAIST Business School, Byung Cho Kim, Virginia Polytechnic Institute & State University - Pamplin College of Business, and Wonseok Oh, KAIST Business School analyze The Toll of Patent Trolls: Implications for Innovation.
ABSTRACT: Groundbreaking innovations are protected by patent systems, but innovations are not always transformed into products. Creators sometimes become victims of legal conflicts and money games. These problems particularly originate from the activities of patent trolls, who generate profits by enforcing patent rights against innovative firms. Despite the urgency and severity of the NPE-related issues in a business context, business scholars have been largely reticent in examining such opportunistic misconduct. The current research endeavors to illuminate the nature and causes of patent trolling by grounding Akerlof’s framework, in which information asymmetry results in market failure. This study also provides policy implications that preserve the health of our innovation landscape. Key findings suggest that low patent quality and high litigation costs encourage trolls to engage in ill-intentioned behaviors and discourage inventors from innovations. Increasing the minimum standards and improving patent value itself not only hinder exploitation by trolls but also induce the transfer of wealth to inventors. Discouraging trolls, however, is contingent on two preconditions: the quality of patents should be ensured, and the current damage compensation scheme should be rationalized. Our analytical derivations reveal that actions designed to deter opportunistic intent do not always encourage innovators to commercialize their inventions, but sometimes hinder commercialization of innovations. Our frameworks provide insights into addressing these issues in a synchronous manner, thereby upholding the forward-looking vision of innovation.
Stacey L. Dogan, Boston University - School of Law explores The Role of Design Choice in Intellectual Property and Antitrust Law.
ABSTRACT: When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to optimize enforcement of intellectual property rights, and monopolists need not consider the effects on competitors when they devise and sell new products.
Yet in both contexts, on rare occasions, courts deem the non-interference principle inapplicable and find liability, at least in part, based on a party’s choice of product design. Although intellectual property and antitrust scholars have each addressed judicial treatment of product design within their discipline, commentators have given little attention to similarities and differences between how the non-interference principle plays out in each context. Such an investigation yields interesting insights about the values underlying non-interference, and has implications for judges applying the principle in both intellectual property and antitrust law. This essay explores the non-interference principle in intellectual property and antitrust law, with an eye toward the factors that determine its applicability across the two doctrinal contexts.