Tuesday, November 29, 2005
The US Supreme Court heard oral arguments today in Illinois Tool v. Independent Ink, a closely watched case addressing the question of whether the existence of a patent on a tying product in a tying arrangement creates the presumption of market power. The district court said no, and the Federal Circuit reversed citing Supreme Court precedent from 1962 in Loew's (that in turn relied upon dicta from the Supreme Court's 1947 International Salt decision). Some commentators view this case as a harbinger of the Roberts Court's commitment to stare decisis. In my opinion, the Federal Circuit reversed and wrote such a strong pro-antitrust (and anti-patent) decision to provoke the Supreme Court to reverse or at least clarify its patent-antitrust and patent tying jurisprudence. Furthermore, even if the Roberts Court does reverse antitrust precedent, that result may have little bearing on how it would deal with larger constitutional precedents, such as Roe. After all, precedent based on interpretation of statutes are different from precedent based on interpretation of the Constitution. The former, I would argue, are more malleable than the latter.
My prediction? The Court will repeat the nostrums from Loew's: patents create a rebuttable presumption of market power. That approach seems more sensible and less intrusive than the largely unstructured, fact intensive inquiry in the presence or absence of actual market power that the district court's opinion seemed to point to. Of course, everyone knows that patents do not create market power by themselves. But the Loew's rule forces the antitrust defendant to show the existence of market substitutes and the inability to affect price. The alternative rule would require the plaintiff to introduce extensive data on markets in fairly complex, and not always well understood, technological settings. If the Loew's rule is correctly applied, the presumption should not matter in cases where defendants can show the inability to control price and should have bite in cases where defendants can.
For more discussion, follow this link to the Medill School of Journalism site at Northwestern.
Monday, November 28, 2005
Bruce Johnsen of George Mason University School of Law and Moin A. Yayha of The University of Alberta School of Law have published The Evolution of Sherman Act Jurisdiction: A Roadmap for Competitive Federalism in 7 U. Penn. J. Constitutional L. 403-472 (2004). The authors make the case for basing Commerce Clause jurisprudence on the competitive federalism model of antitrust law. Under the authors' approach, Congress would have to justify legislation under the Commerce Clause by identifying an economic market failure that affects more than one state which cannot be corrected by the states due to a political failure.
The article is provocative, but I am not completely convinced that the approach is completely satisfactory. Putting aside the point that Lopez was an inappropriate right turn in constitutional law, my criticism is that the concept of economic market failure and political failure are too amorphuous to be helpful in determining when Congress has the power to act. It strikes me that it is impossible to separate the question of when Congress has the power to act from whether Congress should act. The answer to both rest on one's views on the justification for regulation, which will rest on the perceived presence of an economic or political failure of sorts. Good old legal process works fine in my opinion: be deferential on whether Congress can act under the Commerce Clause and focus on when Courts should be allowed to second guess Congressional judgments based on political or economic failures in process. Lopez was a shot in the air, perhaps, but should not turned into a silver bullet designed to kill imagined legislative monsters.
Wednesday, November 9, 2005
In a case involving Tamoxifin, the Second Circuit held that a reverse payment as settlement in a patent infringement suit, while suspicious, did not violate the antitrust law under closer scrutiny. The decision now creates a 2-1 split among the circuits with the Second and Eleventh Circuits upholding reverse payments and the Sixth finding them a per se violation of the antitrust law. The Supreme Court recently sought additional briefing from the Solicitor General in the Eleventh Circuit case involving Schering Plough, and some expect the Court to grant the FTC's cert petition in the Schering Plough case.
The Chinese goverment is considering the adoption of merger review requirements similar to those under US and EU law. According to proposals, any proposed merger that affects 1.5 billion yuan of business in China will need to be approved by the Chinese authorities.
Tuesday, November 1, 2005
The American Antitrust Institute has released a bulletin summarizing the position of Judge Samuel Alito, the current Supreme Court nominee, on antitrust. The bulletin summarizes seven Alito opinions in antitrust and discusses an attempt to rehear en banc an antitrust ruling in favor of the plaintiff. The conclusion: Alito is not a friend of antitrust.