Friday, January 12, 2007

What Happened to Antitrust? Observations from the Annual AEA Meeting

Posted by D. Daniel Sokol

This past week, thousands of economists from around the world met at the annual meeting of the American Economics Association.  What is particularly interesting from the standpoint of this blog is how few IO panels there were.  Is antitrust no longer sexy?

January 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 10, 2007

Timely Paper on Antitrust and Patents

Posted by Shubha Ghosh

Professor Christopher Leslie of Chicago Kent Law School has uploaded an interesting paper on SSRN advocating use of antitrust law to challenge the licensing of invalid patents.  Professor Leslie specifically questions the requirement under current law that the patent holder must enforce an invalid patent in order to state a claim for a Sherman Act violation.   

The paper is timely in light of the decision by the Supreme Court on January 9 in the Medimmune v Genentech case.  The slip opinion is linked below.  In Medimmune, the Court held that  a licensee had standing under Article III and the Declaratory Judment Act to challenge the validity of a patent without repudiating the license.  The decision is an important, and controversial, one for licensing practice and for the existing institutional arrangements for challenging patent validity.  Professor Leslie's proposal suggests yet another mechanism for insuring the integrity of the patent system.

Download Medimmune.pdf

January 10, 2007 | Permalink | Comments (0) | TrackBack (0)

Minimum Resale Price Maintenance Under Scrutiny

Posted by Shubha Ghosh

In December 2006, the Supreme Court granted cert in Leegin v PSKS.  The Court is asked to review the standard of review for minimum resale price maintenance.  In 1997, the Court ruled in Khan that maximum resale price maintenance was subject to the rule of reason, overruling fifty year old precedent set in Albrecht.  In Leegin, the Court will be addressing even more established precedent: the 1911 precedent of Dr. Miles holding that minimum resale price maintenance is per se illegal.   Given the Court's ruling in Khan, now almost a decade old,  the grant of cert in Leegin is not surprising.  Whether the Court will overrule Dr. Miles is another matter.  My sense is that Dr. Miles is superprecedent, to quote the Chief Justice, in the area of antitrust, and I do not see much academic or practitioner pressure to overturn the 1911 decision.   Furthermore,  the argument has been to distinguish maximum from minimum resale price maintenance with the per se rule making sense in the latter case but not in the former.   

The Fifth Circuit opinion, following Dr. Miles, is linked below:

Download Leegin.pdf

January 10, 2007 | Permalink | Comments (0) | TrackBack (0)