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I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim 2017 John Marshall Law School

I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim

Faculty Scholarship

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation’s principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the “legal dialogue” of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the ...


Louis Brandeis And Contemporary Antitrust Enforcement, Kenneth G. Elzinga, Micah Webber 2017 Touro College Jacob D. Fuchsberg Law Center

Louis Brandeis And Contemporary Antitrust Enforcement, Kenneth G. Elzinga, Micah Webber

Touro Law Review

No abstract provided.


Citizen Petitions: Long, Late-Filed, And At-Last Denied, Michael A. Carrier, Carl Minniti 2017 American University Washington College of Law

Citizen Petitions: Long, Late-Filed, And At-Last Denied, Michael A. Carrier, Carl Minniti

American University Law Review

No abstract provided.


Abuse Of The Hatch-Waxman Act: Mylan's Ability To Monopolize Reflects Weaknesses, Kieran Meagher 2017 Brooklyn Law School

Abuse Of The Hatch-Waxman Act: Mylan's Ability To Monopolize Reflects Weaknesses, Kieran Meagher

Brooklyn Journal of Corporate, Financial & Commercial Law

The Drug Price Competition and Patent Term Restoration Act of 1984, better known as the Hatch-Waxman Act, is intended to lower the average price paid by consumers for prescription drugs. The Hatch-Waxman Act attempts to do so by simplifying the application process for generic drug manufacturers, allowing generic drug applications to circumvent the lengthy FDA testing and approval process that brand-name manufacturers must undergo. Though the Hatch-Waxman Act has successfully created a clear path to the market for generic drugs, it contains loopholes that allow brand name and generic companies to engage in practices aimed at maximizing monopoly profits, effectively ...


Restoring The Legitimacy Of Private Antitrust Enforcement, Robert H. Lande, Joshua P. Davis 2017 University of Baltimore School of Law

Restoring The Legitimacy Of Private Antitrust Enforcement, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

This is a draft chapter from the American Antitrust Institute's 2017 recommendations to the 45th President of the United States. It contains a brief but well-deserved defense of the benefits of private antitrust enforcement and a critique of the claims that private enforcement in the United States is excessive, that it leads to overdeterrence, and that the courts are plagued with widespread frivolous antitrust lawsuits. It also offer a number of specific recommendations for the new administration to implement in the private antitrust enforcement area, including:

* Educate the courts, the public, and federal and state legislatures about the virtues ...


Appraising Merger Efficiencies, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

Appraising Merger Efficiencies, Herbert J. Hovenkamp

Faculty Scholarship

Mergers of business firms violate the antitrust laws when they threaten to lessen competition, which generally refers to a price increase resulting from a reduction in output. However, a merger that threatens competition may also enable the post-merger firm to reduce its costs or improve its product. Attitudes toward mergers are heavily driven by assumptions about efficiency gains. If mergers of competitors never produced efficiency gains but simply reduced the number of competitors, a strong presumption against them would be warranted. We tolerate most mergers because of a background, highly generalized belief that most or at least many produce cost ...


Aggregated Royalties For Top-Down Frand Determinations: Revisiting "Joint Negotiation", Jorge L. Contreras 2017 S.J. Quinney College of Law, University of Utah

Aggregated Royalties For Top-Down Frand Determinations: Revisiting "Joint Negotiation", Jorge L. Contreras

Utah Law Faculty Scholarship

In an environment in which widely-adopted technical standards may each be covered by large numbers of patents, there have been increasing calls for courts to determine “fair, reasonable and non-discriminatory” (FRAND) royalties payable to holders of standardsessential patents (SEPs) using “top-down” methodologies. Top-down royalty approaches begin with the aggregate royalty that should be payable with respect to all SEPs covering a particular standard, and then allocate a portion of the total to individual SEPs. Top-down approaches avoid many drawbacks associated with bottom-up approaches in which royalties for individual SEPs are assessed, often in an inconsistent and piecemeal manner, without regard ...


E. Bement & Sons V. National Harrow Company: The First Skirmish Between Patent Law And The Sherman Act, Amelia Rinehart 2017 S.J. Quinney College of Law, University of Utah

E. Bement & Sons V. National Harrow Company: The First Skirmish Between Patent Law And The Sherman Act, Amelia Rinehart

Utah Law Faculty Scholarship

In the 1890s, the Sherman Act presented a host of unknowns for patent owners and lax enforcement enabled the proliferation of trusts like the Harrow Trust embodied in the practices of National Harrow. Bement, a profligate license violator, ended up fighting the trust all the way to the Supreme Court, but the surprising outcome left an enduring impression on the interplay between antitrust and patent law. In this way, the case has been both important and forgotten over time. Given the outcome in Actavis, and the possibility for a change of personnel on the Court that may shift it further ...


Constraining Monitors, Veronica Root 2017 Notre Dame Law School

Constraining Monitors, Veronica Root

Journal Articles

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory ...


Insider Trading Flaw: Toward A Fraud-On-The-Market Theory And Beyond, Kenneth R. Davis 2017 American University Washington College of Law

Insider Trading Flaw: Toward A Fraud-On-The-Market Theory And Beyond, Kenneth R. Davis

American University Law Review

No abstract provided.


Patents V. Antitrust: Preempting Conflict, Matthew G. Sipe 2017 American University Washington College of Law

Patents V. Antitrust: Preempting Conflict, Matthew G. Sipe

American University Law Review

No abstract provided.


2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note, 2017 Roger Williams University

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.


Comment On “The Empirical Basis For Antitrust: Cartels, Mergers, And Remedies”, John M. Connor, Robert H. Lande 2017 Purdue University

Comment On “The Empirical Basis For Antitrust: Cartels, Mergers, And Remedies”, John M. Connor, Robert H. Lande

All Faculty Scholarship

In this journal, James Langenfeld critically reviewed four of the present authors’ articles that analyze the size of cartel overcharges and their antitrust policy implications. In this comment, we explain why we believe Langenfeld errs in his criticism of our work. In particular, this comment discusses the variation in research quality of the sources used to compile a large sample of historical cartel overcharges; the advisability of trimming outliers or large estimates from the sample; alleged publication bias; why our 25% median estimate is much more likely to be correct than the US Sentencing Guideline’s 10% presumption; and the ...


The Investment Protection Chapter Of The Eu-Singapore Free Trade Agreement: A Model For The Post-Brexit Uk Iias, Siraj Shaik AZIZ 2017 Singapore Management University

The Investment Protection Chapter Of The Eu-Singapore Free Trade Agreement: A Model For The Post-Brexit Uk Iias, Siraj Shaik Aziz

Research Collection School Of Law

The impending British exit (Brexit) from the European Union has placed the UK's investment policy at a crossroads. A post-Brexit UK will now have to reorganise its investment relationships with its economic partners through bespoke UK IIAs. This exercise will have to accommodate the shifting Zeitgeist concerning the balance of investors' rights and the right to regulate IIAs that is expected. This paper examines the continued relevance of the recently minted Investment Protection Chapter in the EU-Singapore Free Trade Agreement, acknowledged by Britain's power brokers, as a persuasive model for the UK to emulate for this purpose. This ...


Amateurism And The Ncaa: How A Changing Market Has Turned Caps On Athletic Scholarships Into An Antitrust Violation, Daniel Laws 2017 University of Richmond

Amateurism And The Ncaa: How A Changing Market Has Turned Caps On Athletic Scholarships Into An Antitrust Violation, Daniel Laws

Law Student Publications

The college athletics industry is worth $16 billion, and it only continues to grow as the number of collegiate students and student-athletes increases. The governing body of collegiate athletics, the National Collegiate Athletic Association ("NCAA"), prides itself on the amateur status of its athletes. To preserve its athletes' amateurism, the NCAA mandates that its member institutions agree not to compensate student-athletes with athletic scholarships that are above the university's cost of attendance. Typically, this type of horizontal agreement- one between competitors that artificially caps the amount a worker can earn violates Section 1 of the Sherman Act as an ...


Market Definition, Steven C. Salop, Serge Moresi, John R. Woodbury 2017 Georgetown University Law Center

Market Definition, Steven C. Salop, Serge Moresi, John R. Woodbury

Georgetown Law Faculty Publications and Other Works

We explain the “hypothetical monopolist test” that has become the standard methodology for identifying relevant antitrust markets in merger cases, and discuss two approaches to implementing the test. We then focus on the implementation of the test when firms offer multiple products or services, either inside or outside the candidate market, and discuss the “hypothetical cartel test” introduced in the 2010 U.S. Merger Guidelines.


The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, And The Flawed Incremental Price-Cost Test, Steven C. Salop 2017 Georgetown University Law Center

The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, And The Flawed Incremental Price-Cost Test, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

There are two overarching legal paradigms for analyzing exclusionary conduct in antitrust – predatory pricing and the raising rivals’ costs characterization of foreclosure. Sometimes the choice of paradigm is obvious. Other times, it may depend on the structure of the plaintiff’s allegations. Some types of conduct, notably conditional pricing practices (CPPs), might appear by analogy to fit into both paradigms. CPPs involve pricing that is conditioned on exclusivity or some other type of favoritism in a customer’s purchases or input supplier’s sales. The predatory pricing paradigm would attack the low prices of CPPs. By contrast, the RRC foreclosure ...


Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim 2017 John Marshall Law School

Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim

Faculty Scholarship

This Article argues that courts should operationalize insights offered by behavioral economics in developing jurisprudence at the patent-antitrust interface.


Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane 2017 University of Michigan Law School

Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane

Articles

"In recent years, Tesla Motors (recently renamed Tesla) has been engaged in a state-by-state ground way for the right to distribute it’s all-electric vehicles directly to consumers. The car dealers' lobby, with the political backing of General Motors, has fiercely battled back, relying on decades-old state dealer protection laws to argue that Tesla is legally bound to distribute through franchised dealers. Through a combination of favorable state legislative and judicial decisions, Tesla has won the right to distribute directly in many states, but remains categorically barred from direct distribution in important states like Michigan and Texas--and hence all direct ...


The Antitrusting Of Patentability, Saurabh Vishnubhakat 2017 Texas A&M University School of Law

The Antitrusting Of Patentability, Saurabh Vishnubhakat

Faculty Scholarship

Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this ...


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