Antitrust & Competition Policy Blog

Apportionment, FRAND Royalties, and Comparable Licenses After Ericsson v. D-Link

J. Gregory Sidak Criterion Economics, L.L.C. discusses Apportionment, FRAND Royalties, and Comparable Licenses After Ericsson v. D-Link.

ABSTRACT: Standard-setting organizations (SSOs) usually require that their members clarify whether they are willing to provide access to their technology essential to a standard under development on fair, reasonable, and nondiscriminatory (FRAND) terms and conditions — or, in American parlance, reasonable and nondiscriminatory (RAND) terms and conditions. After the patent holder has agreed to license its standard-essential patents (SEPs) on FRAND terms, a licensor and a licensee negotiate the exact licensing terms for the use of the SEP portfolio. In the few cases in which parties cannot agree on the exact terms, they might ask a court or an arbitration tribunal to determine a FRAND royalty. The decision of the U.S. Court of Appeals for the Federal Circuit in Ericsson, Inc. v. D-Link Systems, Inc. identifies important economic principles for determining a FRAND royalty for the use of SEPs. Ericsson is the owner of several patents essential to the 802.11(n) standard — the standard promulgated by the Institute of Electrical and Electronics Engineers (IEEE) that is commonly known as Wi-Fi — and committed to license those patents on RAND terms. When negotiations between Ericsson and several manufacturers of multicomponent devices that incorporated the Wi-Fi standard failed to result in a license, Ericsson sued in the U.S. District Court for the Eastern District of Texas and demanded a jury trial to determine the RAND royalty that the manufacturers should pay to use Ericsson’s SEPs. Relying on evidence from comparable licenses — that is, licenses that Ericsson had signed with third parties similarly situated to the defendants to use Ericsson’s patents essential to the Wi-Fi standard — the jury awarded damages of roughly $10 million to Ericsson. In reviewing the case on appeal, the Federal Circuit confirmed that royalties specified in comparable licenses provide accurate and reliable evidence of the value of a patented technology for calculating a FRAND royalty. The Federal Circuit rejected the defendants’ argument that a chipset (rather than the mobile device) should represent the royalty base to calculate a FRAND royalty. (In simple terms, one typically calculates total damages by multiplying a royalty rate by a royalty base). The Federal Circuit also reiterated the fundamental principle that a party should support allegations about abstract conjectures, such as patent holdup and royalty stacking, with relevant evidence. Unsupported allegations about the SEP holder’s supposedly opportunistic licensing practices should not influence the determination of a FRAND royalty. Finally, the Federal Circuit said that a FRAND royalty should not include the value that a technology acquires by virtue of its inclusion in a standard. Although the Federal Circuit was correct in reiterating that a FRAND royalty, like any other royalty for the use of a patented technology, should compensate the SEP holder for the incremental value of its patented technology, the Federal Circuit’s decision should not be interpreted as excluding any of the standard’s value from a FRAND royalty. To the contrary, when a patented technology creates part of the standard’s value, only a FRAND royalty that includes part of that value will adequately compensate the SEP holder for its contribution.

Antitrust Regulation of Intellectual Property Rights in China

Liyang Hou, Shanghai Jiao Tong University (SJTU) - KoGuan Law School discusses Antitrust Regulation of Intellectual Property Rights in China.

ABSTRACT: This article reviews the practice of competition agencies, including NDRC, Mofcom and SAIC, and courts in China regarding the application of antitrust law to intellectual property rights related anti-competitive conduct. It covers all the cases and regulations coming out after the adoption of China's Anti-monopoly Law. Although China has progressed considerably in this domain, there are still some imperfections.

Compensation and the Damages Directive

Sebastian Peyer UEA Law School identifies Compensation and the Damages Directive.

ABSTRACT: The EU Damages Directive came into force in December 2014. One of its objectives is to ensure the effective private enforcement of competition law by facilitating damages claims in the courts of the EU Member States. This paper looks closely at the Directive’s compensation goal and the key arrangements that are to encourage victims to seek redress in the courts. The paper uses a simple framework to demonstrate that the Damages Directive is unlikely to foster compensation because it fails to create incentives for harmed individuals to commence legal action. If more compensation claims are desired, the Member States should devise a framework for private antitrust actions that goes beyond the Directive’s remit by, for example, allowing class actions.

Peer-to-Peer Markets

Liran Einav, Stanford University - Department of Economics; National Bureau of Economic Research (NBER), Chiara Farronato, Stanford University, and Jonathan Levin, Stanford University - Department of Economics; Stanford Graduate School of Business; National Bureau of Economic Research (NBER) examine Peer-to-Peer Markets.

ABSTRACT: Peer-to-peer markets such as eBay, Uber, and Airbnb allow small suppliers to compete with traditional providers of goods or services. We view the primary function of these markets as making it easy for buyers to find sellers and engage in convenient, trustworthy transactions. We discuss elements of market design that make this possible, including search and matching algorithms, pricing, and reputation systems. We then develop a simple model of how these markets enable entry by small or flexible suppliers, and the resulting impact on existing firms. Finally, we consider the regulation of peer-to-peer markets, and the economic arguments for different approaches to licensing and certification, data, and employment regulation.

Communiqué of 18 September 2015 Summary of the second annual meeting of the Forum on 18 September 2015

Summary of the second annual meeting of the Forum on 18 September 2015

The Rome Antitrust Forum is an initiative co-organised by the Scuola Nazionale dell’Amministrazione (Rome) and the Law Department of the European University Institute (Florence). The purpose of the Forum is to bring together distinguished antitrust practitioners (both lawyers and economists), leading figures in antitrust enforcement from abroad and representatives of the Italian Competition Authority to discuss, on a non-attributable basis, the way in which the Italian system of antitrust enforcement operates. The Forum facilitates an exchange of views among participants in order to identify key challenges confronting antitrust enforcement in Italy. The Forum ends with some suggestions and recommendations which, if taken on board, could lead to a more effective system of antitrust enforcement in Italy.

This year the Forum considered two issues: the role of indirect evidence in proving the existence of a cartel, including in the context of public procurement, and the challenges facing the Italian Authority in the promotion of a pro-competitive system of regulation.

Below we set out some of the major challenges that emerged from the reflections of the Forum participants and conclude with some suggestions.

Download Comunicato 18 settembre english

 

Competition and Innovation in Automobile Markets

Vivek Ghosal, Georgia Institute of Technology; Center for Economic Studies and Ifo Institute for Economic Research (CESifo) and Jiayao Ni, Georgia Institute of Technology - School of Economics examine Competition and Innovation in Automobile Markets.

ABSTRACT: Using data from the U.S. automobile market, we empirically examine the link between competition and innovation. Consistent with a large literature, we use patent counts as a measure of innovation. The combination of the U.S. market’s economic importance, market dynamics, and the significant intertemporal fluctuations in firms’ market shares and patents make this an interesting market to examine the link between competition and innovation. We use firm-level time-series data over a long horizon (1969-2012) for nine well established firms selling in the U.S. market (GM, Ford, Chrysler, Toyota, Honda, Nissan, Volkswagen, BMW, and Daimler). Some of our key findings are: (1) increase in firms’ market shares result in higher patenting, and the relationship is reasonably non-linear; (2) higher market-wide competition results in an increase in patenting, and the relationship is weakly non-linear; (3) the (absolute) quantitative impact on patents is larger for firms’ market share effect as compared to market-wide competition; (4) there is relatively strong path-dependence in firms’ patenting behavior; and (5) we find interesting results linking patents to GM’s bankruptcy, the Daimler-Chrysler merger, environmental regulations, voluntary export restraints, and firms’ patenting over business cycles.

International Trade, Intellectual Property and Competition Rules: Multiple Cases for Global 'Regulatory Co-Opetition'?

Rostam J. Neuwirth, University of Macau - Faculty of Law and Alexandr Svetlicinii, University of Macau - Faculty of Law ask International Trade, Intellectual Property and Competition Rules: Multiple Cases for Global 'Regulatory Co-Opetition'?

ABSTRACT: At the global level, the respective legal regimes governing international trade, intellectual property and competition matters have evolved separately or at different speeds and without closer mutual connection and adequate institutional support and coordination. The global economy and some of its most innovative industries, however, are being in a trend of convergence manifest in so-called “convergence products”, i.e. products combining two or more features of formerly separate devices or industries. The convergence of various business branches or industries, however, appears to meet with an increasing divergence of fragmentation of the international legal regimes governing them. As a result, the present chapter advocates the approach of “regulatory co-opetition” as the optimal mix between regulatory competition and regulatory cooperation in the governance of international trade and commerce in the future. Most of all, it understands “regulatory co-opetition” as to not only include the better coordination between governmental and non-governmental actors but notably between the inter-governmental or international organizations in the closely related fields of  international trade, intellectual property and competition matters. Based on this understanding, the present chapter features six selected case studies which are used to assess the need for greater coordination between the respective international legal regimes of international trade, intellectual property and competition matters as covered mainly by the WTO, the WIPO, UNCTAD, UNCTIRAL, and the OECD.

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The Qualcomm Decision: Protectionism? And for Whom?

Liyang Hou Shanghai Jiao Tong University (SJTU) - KoGuan Law School asks The Qualcomm Decision: Protectionism? And for Whom?

ABSTRACT: This essay reviews the Qualcomm decision made by the NDRC in 2015, a case about abusing standard essential patents. It observes that this decision essentially assessed conduct of abusing dominant positions under the framework of per se illegal. As a result, it, though possibly aiming to protect domestic smartphone producers, may quickly fail its purpose.

Transatlantic Perspective on Judicial Deference in Administrative Law

Maciej Bernatt, University of Warsaw, Centre for Antitrust and Regulatory Studies looks at Transatlantic Perspective on Judicial Deference in Administrative Law.

ABSTRACT: The U.S. concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in the light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts.

The paper analyzes whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts or both). As a starting point it is observed that it remains generally accepted in Europe that it is a role of courts (and not administrative agencies) to interpret the law. Against this background, standards stemming from Article 6 of the European Convention on Human Rights (the ECHR) are analyzed in order to answer the question whether deferential standard of review is permissible under the ECHR principle of full judicial review. The analysis of the jurisprudence of the European Court of Human Rights (the ECtHR) leads to the conclusion that there is a space for U.S.-like judicial deference under European fundamental rights framework when it comes to the question of facts. On the other hand the ECtHR jurisprudence does not offer much guidance as to whether any deference can be accorded to administration’s statutory interpretation.

Further study on European Union courts’ review of the decisions of the European Commission in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, the EU Courts declare deference to the Commission’s complex economic assessment and defer to the Commission’s interpretation of its own soft law. When it comes to facts, standard of review seems to correspond with the U.S. substantial evidence test. On the other hand, legal questions concerning the Commission’s own soft law are reviewed in a way similar to the Skidmore standard. Further similarities between Europe and the U.S. are observed in the U.S. courts of appeal practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by the U.S. courts remains close to the EU Courts’ review of the EU Commission’s decisions.

The paper shows that differences between the U.S. and Europe — especially if one takes into account U.S. courts often non-application of Chevron — are not so significant as one would intuitively think. In the conclusion, the paper proposes three variables that may be identified in both the U.S. and European approaches to decide whether judicial deference to administrative agency decisions should be accorded or not.

The Application of European Competition Law in the Financial Services Sector

Thomas Franchoo, Niels Baeten and Lukas Solek, all Linklaters discuss The Application of European Competition Law in the Financial Services Sector.

ABSTRACT: An evaluation of the Commission’s State aid control demonstrates its effectiveness to stabilise the financial sector, but the imposed restructuring plans including divestitures and behavioural commitments have not been as beneficial to the competitiveness of the sector. Also antitrust enforcement in the sector has attracted much interest with the Court of Justice calling for a restrictive interpretation of the restriction ‘by object’ notion in Groupement des Cartes Bancaires, while the Commission continues to pursue infringements in relation to interest rate derivatives. As regards merger control, the Commission mainly dealt with simplified cases, while the General Court dismissed on all grounds Deutsche Borse's action for annulment against the Deutsche Borse/NYSE prohibition decision.

The Application of Competition Law to the Automotive Industry

Anne C. Wegner and Sophie Oberhammer both with Luther Rechtsanwaltsgesellschaft mbH survey The Application of Competition Law to the Automotive Industry.

ABSTRACT: The European Commission has investigated an unprecedented number of cartels targeting car part manufacturers, and dealers have come under review by national competition authorities for horizontal practices. In relation to mergers, the European Commission continues to review numerous cases and seems to broaden geographic market definition for spare parts production in the future. National courts clarified their interpretation of antitrust law, ruling in particular on access to network claims, thereby partly diverging from the European Commission's preferred (brand-specific) market definition for the aftermarkets. As regards access to technical information, the European Commission published an external study proposing Best Practice Guidelines and the German industry association of independent parts dealers has taken court action for the release of additional data.

Commitment Decisions and the Paucity of Precedent

Melchior Wathelet, First Advocate General of the Court of Justice of the European Union describes Commitment Decisions and the Paucity of Precedent.

ABSTRACT: There is a growing and vocal disquiet within the EU competition law community concerning the European Commission's increasing recourse to commitment decisions pursuant to Article 9 of Regulation No. 1/2003. The debate on the matter has identified a number of interlinked points. Firstly, a great deal of discussion has focussed on the proportionality of commitments accepted (some have said ‘extracted’) by the Commission in order to meet the competition concerns expressed in its preliminary assessment or statement of objections. It is opined that if the commitments offered by undertakings and ultimately accepted by the Commission are overreaching or simply not necessary, the latter is effectively redrawing or regulating markets rather than strictly upholding competition rules. It is argued that the imposition of unnecessary or excessively restrictive behavioural and/or structural remedies may undermine an undertaking's ability to compete in the market, thereby weakening the competitive process itself. This debate may, however, underestimate the ability of undertakings to defend their legitimate interests, not to mention the capacity of those undertakings and the Commission to act in a rational manner. On a more positive note, the diverse benefits that accrue under commitment proceedings to the undertakings involved and the Commission as opposed to infringement proceedings, which are in principle more protracted and contentious, have been noted and welcomed. A swifter resolution of the matter together with the avoidance of fines and the negative publicity that a finding of infringement pursuant to Article 7 of Regulation No. 1/2003 by the Commission entails provides clear incentives for undertakings to engage in commitment proceedings and explain their popularity in that quarter. Commitment as opposed to infringement proceedings may also reduce undertakings’ compliance costs most notably by reducing expenditure on legal fees. In addition, the use of commitment rather than infringement decisions undoubtedly frees up limited Commission and NCA resources, which can be employed in other (more serious) cases in the interest of competition and thus the consumer. In that regard, I perceive the power granted by the legislature to the Commission pursuant to Article 9 of Regulation No. 1/2003 to adopt commitment decisions as a logical extension of its recognised entitlement to prioritise its case load.

Weyerhaeuser: An Epilogue

Jeff Harrison, University of Florida offers Weyerhaeuser: An Epilogue.

ABSTRACT: Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., could have been influential in three ways. First, the Court directly addressed the standard for predatory buying and, consequently, has undoubtedly had an impact on whether plaintiffs will rely on that theory.  Second, its express recognition of the similarities between buyers and sellers may encourage increased reliance on monopsony-based theories of liability.  Finally, the decision could have created the impetus for refining the analysis of a number of issues when they arise in monopsony contexts. These include monopsony tying, the use of monopsony power to gain power on the selling side of markets, as well as standing and antitrust injury. This study of post-Weyerhaeuser events demonstrates that it is a narrow opinion perhaps only economically suitable for very few special fact patterns. It is frequently ignored although sometimes relied upon by defendants who attempt to reframe their cases as Weyerhaeuser-like in hopes of a dismissal.

Should Google's Secret Sauce Be Organic?

Florian Wagner-von Papp, University College London Faculty of Laws asks Should Google's Secret Sauce Be Organic?

Abstract: This commentary discusses the European antitrust investigation into Google and the international implications of the case. It focuses on Google's alleged dominance and the allegations concerning Google’s self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the Commission sent on 15 April 2015.

The EU Commission's international jurisdiction to prescribe is found to be unproblematic. However, the tendency towards overenforcement resulting from the cumulation of national and supranational investigations by competition authorities worldwide counsels caution in borderline cases. And Google is a borderline case.

While it seems possible to construct a story of dominance and consumer harm, the paper doubts Google's ability to act to an appreciable extent independently of its competitors and customers. Ultimately, this is an empirical question, and the Commission may have sufficient evidence at its disposal. However, the publicly available evidence does not seem to support a finding of dominance, despite Google's high share of user searches.

A finding of abuse would require changing the goalposts: one would have to accept that instead of a constructive refusal to deal, it is already abusive if services are not provided to third parties on identical conditions, or that instead of requiring coercion of consumers to acquire a tied product or service, it is already abusive if consumers are merely nudged to preferring the vertically integrated firm's products. These changes would amount to a paradigm change. Traditionally, competition is to force producers to be responsive to consumer preferences. Consumer choices are taken to reveal their preferences unless coercion can be shown. Allowing intervention already below the threshold of coercion, when consumers are merely nudged to make particular choices, risks substituting the competition authority's assessment for consumer preferences.

Intellectual Property Rights and Antitrust in China

Yee Wah Chin, Ingram Yuzek Gainen Carroll & Bertolotti, LLP examines Intellectual Property Rights and Antitrust in China.

ABSTRACT: China’s Anti-Monopoly Law (AML) came into effect on August 1, 2008, following its enactment the year before and 13 years of drafting. China enacted the Third Amendments to its Patent Law on December 26, 2008, effective October 1, 2009. This chapter summarizes the AML, and discusses those aspects that may have particular impact on intellectual property rights (IPR), as well as the provision of the Patent Law that implicates competition law issues and the implementing regulations and Judicial Interpretations relating to those laws that involve the IPR-competition law interface.

Tacit Collusion: The Neglected Experimental Evidence

Christoph Engel, Max Planck Institute for Research on Collective Goods; University of Bonn - Faculty of Law & Economics; Universitat Osnabruck - Faculty of Law describes Tacit Collusion: The Neglected Experimental Evidence.

ABSTRACT: Both in the United States and in Europe, antitrust authorities prohibit merger not only if the merged entity, in and of itself, is no longer sufficiently controlled by competition, but also if, post merger, the market structure has changed such that “tacit collusion” or “coordinated effects” become disturbingly more likely. It seems that antitrust neglects the fact that for more than 50 years, economists have been doing experiments on this very question. Almost any conceivable determinant of higher or lower collusion has been tested. This article standardizes the evidence by way of a meta‐study, and relates experimental findings as closely as possible to antitrust doctrine.

Patent Pools and Related Technology Sharing

Herbert J. Hovenkamp, University of Iowa - College of Law and Erik N. Hovenkamp, Northwestern University, Department of Economics examine Patent Pools and Related Technology Sharing.

ABSTRACT: A patent "pool" is an arrangement under which patent holders in a common technology commit their patents to a single holder, who then licenses them out to the original patentees and perhaps also to outsiders.  The payoffs include both revenue earned as a licensor, and technology acquired by pool members as licensees.  Public effects can also be significant.  For example, technology sharing of complementary patents can improve product quality and variety.   In some information technology markets pools can prevent patents from becoming a costly obstacle to innovation by clearing channels of technology transfer. By contrast, a pool's aggregate output reduction or price fixing in a product market can produce cartel profits.

A traditional justification for patent pools is that they facilitate improved products by uniting complements  Sharing of complementary patents means that licensees can then employ all the patents in their product, rather than creating silos in which each manufacturer incorporates only its own patented features.  Pools created for this purpose can reduce problems of royalty stacking and holdup, as well as problems involving blocking patents.  A more robust explanation for pooling in many markets comes out of the economics of transaction costs, which emphasizes the role of limited information and the costs of obtaining it, as well as uncertainty in bargaining and sharing.  Pooling is an efficient solution to problems of technology development and transfer when determining patents' validity or identifying their boundaries is costly.  In this sense, patent pools function much as traditional common pool resources.

An individual patent’s boundaries distinguish its protected technological embodiments from noninfringing technology. But when multiple patents are aggregated what really matters are the outer boundaries that separate the portfolio as a whole from outside patents or the public domain.  So long as the relevant rights are somewhere in the portfolio, the parties do not need to delineate the boundaries of individual patents in order to strike a deal.  While most patent pools are socially beneficial, certain practices or structures can pose competitive problems.  The biggest antitrust risk from pooling is collusion, and its threat depends on two things.  First is the market structure and the power of the pool within its market.  Second is the nature of pricing and exclusivity arrangements within the pool. Pool "exclusivity" can take several forms.  First, it can refer to the contract that each licensor has with the pool, asking whether that licensor is free to license to others outside of the pool.  Second it can refer to the pool’s willingness as licensee to accept an offered technology from an outsider for inclusion in the pool.  Third it can refer to the pool's willingness as licensor to license to outsider manufacturers.  Fourth, it can refer to field-of-use or other restrictions given to licensees from the pool.

A large but inconclusive literature considers the relationship between pooling and innovation.  Conclusions are sensitive to assumptions about patent strength and quality, about the relationship among the patents in a pool and the strength of alternatives outside the pool, about the impact on innovation of insiders vs. outsiders to the pool, and finally, about the strategic responses of participants.  Most of the literature concludes that most pools increase innovation rates.  A pool should increase the demand for innovation of complements to the pool.  First of all, access to the existing technology by pool members should be guaranteed and cheaper.  To the extent the pool reduces licensing costs and eliminates royalty stacking the cost of further improvements should decline.  When innovation is cumulative the development of new technology may require the licensing of existing technology with multiple patent holders.  Pooling can reduce these costs and thus facilitate cumulative innovation.

1st India Conference on Innovation, Intellectual Property & Competition December 7th & 8th at IIM Bangalore

1st India Conference on Innovation, Intellectual Property & Competition December 7th & 8th at IIM Bangalore

• The Conference Webpage is here: http://www.iimb.ernet.in/iipc
• A short preview video is available here: https://www.youtube.com/watch?v=i628nr5LeE4
• Registration link is now open with early bird discounts expiring October 1st (last date Nov 1st) is here: http://www.iimb.ernet.in/regn/iipc/
• Confirmed Speakers by Invitation are here: http://www.iimb.ernet.in/iipc-Conf-invited-Speakers
• Conference organizing committee and team are here: http://www.iimb.ernet.in/iipc-organizing-committee 

 

Competition Law and Public Procurement

Albert Sanchez-Graells, University of Leicester - School of Law explores Competition Law and Public Procurement.

ABSTRACT: The interaction between competition law and public procurement has been gaining visibility in recent years. This paper claims that these two bodies of EU economic law mainly intersect at two points, or in two different dimensions. Firstly, they touch each other at the need to tackle anticompetitive practices (or bid rigging) in public tenders. This has attracted significant attention in terms of the enforcement priorities of competition authorities and led to recent regulatory developments in the 2014 EU public procurement Directives aimed at increasing the sanctions for bid riggers. Secondly, competition and public procurement cross again at the need to avoid publicly-created distortions of competition as a result of the exercise of buying power by the public sector, or the creation of regulatory barriers to access to public procurement markets. This second intersection has been less explored and the development of regulatory solutions has been poor in both the fields of EU competition law and EU public procurement law. Moreover, the protection of the ‘public mission’ implicit in the public procurement activity led the CJEU to deform the concept of undertaking in a way that can distort EU antitrust enforcement beyond public procurement markets. This paper assesses these issues and stresses the possibilities for a better integration of competition considerations in public procurement through the principle of competition of the 2014 Directives.

Intel and the Abuse of Dominant Position: The General Court Upholds the Highest Fine Imposed on a Single Company for a Competition Law Infringement

Joao Cardoso Pereira, Portuguese Competition Authority describes Intel and the Abuse of Dominant Position: The General Court Upholds the Highest Fine Imposed on a Single Company for a Competition Law Infringement.

ABSTRACT: The General Court’s ruling of 12 June 2014 (Case T-286/09 Intel) upheld the Commission’s decision and the fine imposed on Intel. The General Court held that exclusivity rebates are by their very nature capable of restricting competition. The General Court considers that when a dominant company grants exclusivity rebates (or engages in equivalent practices), the Commission is not under the obligation to analyse the actual effects of the conduct on competition. This paper analyses the Court’s reasoning and tries to anticipate the implications for the enforcement of competition rules.