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Intellectual Property And Competition, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

Intellectual Property And Competition, Herbert J. Hovenkamp

Faculty Scholarship

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to ...


A Property Rights Approach To Temporary Work Visas, Adam B. Cox, Alessandra Casella 2017 NYU School of Law

A Property Rights Approach To Temporary Work Visas, Adam B. Cox, Alessandra Casella

New York University Law and Economics Working Papers

Temporary labor visa rules in the United States are criticized on three grounds: for failing to allocate visas efficiently, for failing to adequately protect domestic workers, and for exposing migrant workers to exploitation. We argue that it is possible to address all three problems by re-configuring the property rights associated with the visas and carefully designing the mechanism for allocating those rights. Our core insight is to unbundle the two rights that today are typically combined: the firm’s right to employ a foreign worker, and the worker’s right to reside and work in the country during that time ...


Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller 2017 Pepperdine University

Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller

The Journal of Business, Entrepreneurship & the Law

If the antitrust remedy a private party pursues would likely have anticompetitive consequences, would only the government constitute an efficient enforcer of the antitrust laws? Imagine that a plaintiff sues for a remedy so large that the award of the remedy would meaningfully increase market concentration by sending the defendants into bankruptcy. Is such a plaintiff an efficient enforcer of the antitrust laws? Should courts hold that in this situation only the government should be able to challenge the alleged conduct? These questions have gone unaddressed in academic literature because litigation rarely raises the specter of the anticompetitive remedy. Recently ...


The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

Faculty Scholarship

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a ...


Vertical Merger Enforcement Actions: 1994–2016, Steven C. Salop, Daniel P. Culley 2017 Georgetown University Law Center

Vertical Merger Enforcement Actions: 1994–2016, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

This is a revised listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 52 vertical matters beginning in 1994 through the end of 2016. It includes challenges and certain proposed transactions that are known to have been abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 Journal of Antitrust Enforcement 1 (2016).


Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly 2017 Elisabeth Haub School of Law at Pace University

Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will discuss the outlook of current NBA prospects and the development of age restrictions. It will also shed light on several key cases and Collective Bargaining Agreements including: Wood v. National Basketball Association, and Denver Rockets v. All Pro Management, Inc. and the NBA CBA. After that, an analysis of Sherman Antitrust Law and current case law concerning age restrictions in sports, and analyze the possibility for age-restrictions to be argued through the court system. Finally, this paper will look into the NBPA’s duty of representation towards NBA prospects and how the NBPA can take ideas from ...


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

Daryl Lim

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


A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West 2017 College of William & Mary Law School

A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West

William & Mary Law Review

No abstract provided.


Justice Scalia And Sherman Act Textualism, Alan Meese 2017 William & Mary Law School

Justice Scalia And Sherman Act Textualism, Alan Meese

Faculty Publications

No abstract provided.


The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer 2017 University of Maine School of Law

The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer

Maine Law Review

It keeps getting worse and worse. Over the past three and a half decades, the Supreme Court has made countless changes to substantive antitrust doctrine, making successful assertion of an antitrust claim more and more difficult. We have known for at least a century—at least since the Standard Oil decision—that the language in section 1 of the Sherman Act, providing that “every contract, combination . . . , or conspiracy, in restraint of trade . . . , is declared to be illegal” is not to be read literally. “Every” does not mean “every.” It means only “some”—generally, only those restraints of trade which are ...


The Role Of Antitrust Principles In Patent Monopolies: The Third Circuit Applies Antitrust Scrutiny To No-Ag Patent Settlements In Smithkline, Meghan Fay 2017 Boston College Law School

The Role Of Antitrust Principles In Patent Monopolies: The Third Circuit Applies Antitrust Scrutiny To No-Ag Patent Settlements In Smithkline, Meghan Fay

Boston College Law Review

On June 26, 2015, in King Drug Co. of Florence v. Smithkline Beecham Corp., the U.S. Court of Appeals for the Third Circuit held that no-authorized generic agreements (“no-AG agreements”), in which a pioneer pharmaceutical manufacturer agrees not to introduce a generic drug, are subject to antitrust scrutiny under the Sherman Act. This Comment argues that the Third Circuit correctly extended the U.S. Supreme Court decision in Federal Trade Commission v. Actavis to non-cash settlement agreements. In Actavis, the Court held that a “reverse-payment settlement,” which compensates a generic manufacturer to delay market entry, creates monopolistic consequences and ...


Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu 2017 Boston College Law School

Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu

Boston College Law Review

In 2016, in Apotex Inc. v. Acorda Therapeutics, Inc., the United States Court of Appeals for the Second Circuit held that a generic drug company could not rely solely on the timing of the Food and Drug Administration’s (“FDA’s”) disposition of a citizen suit and approval of a generic application to state a claim under the Sherman Act based on sham litigation. By contrast, in 2009, in In re DDAVP Direct Purchaser Antitrust Litigation, the Second Circuit held that precisely such evidence was sufficient to state a Sherman Act claim. This Comment argues that the Second Circuit’s ...


Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp 2017 Northwestern University

Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp

Faculty Scholarship

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 ...


Antitrust And Intellectual Property: A Brief Introduction, Keith Hylton 2017 Boston University School of Law

Antitrust And Intellectual Property: A Brief Introduction, Keith Hylton

Faculty Scholarship

Intellectual property law and antitrust have been described as conflicting bodies of law, and the reason is easy to see. Antitrust law aims to protect consumers from the consequences of monopolization. Intellectual property law seeks to enhance incentives to innovate by granting monopolies in ideas or expressions of ideas. The purpose of this chapter is to explore the purported conflict between antitrust and intellectual property. The chapter is largely descriptive, and focuses on current or developing litigation rather than historical controversies. Many of the modern examples of conflict can be attributed to problems of classification.


The Public Trust As An Antimonopoly Doctrine, Michael C. Blumm, Aurora Paulsen Moses 2017 Lewis & Clark Law School

The Public Trust As An Antimonopoly Doctrine, Michael C. Blumm, Aurora Paulsen Moses

Boston College Environmental Affairs Law Review

The public trust doctrine originated—and has persisted in American law—as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust protection to other important natural resources, including non-tidal and non-navigable waters, and land-based resources like parks. Courts are now considering the trust doctrine’s application to the atmosphere. Although there is a considerable body of legal scholarship on the public trust, the ...


Constraining Monitors, Veronica Root 2017 Notre Dame Law School

Constraining Monitors, Veronica Root

Fordham Law Review

Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a ...


Constraining Monitors, Veronica Root 2017 Notre Dame Law School

Constraining Monitors, Veronica Root

Fordham Law Review

Part I of this Article explains the failure of recent attempts by courts and legislators to constrain monitor behavior. Part II then argues that one reason for the lack of monitorship regulation lies in the reluctance of bar associations to oversee quasi-legal behavior. It then explains why reputation appears to be the primary factor reigning in monitor behavior today. Part III discusses implications of this Article’s findings. Specifically, it discusses concerns regarding the disclosure of information, the boundaries of the relationship between a monitor and other parties, and the ways a monitor’s identity might be utilized as a ...


Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol 2017 University of Florida Levin College of Law

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.


The Costs Of Free: Commodification, Bundling And Concentration, Jonathan M. Barnett 2017 University of Southern California

The Costs Of Free: Commodification, Bundling And Concentration, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

Digital markets offer abundant free content but exhibit extreme concentration among content aggregation intermediaries. These characteristics are linked. In commoditized weak-IP markets, firms earn revenues by bundling free content for users with positively priced advertising services for firms. Intermediaries promote content commoditization, and the resulting reallocation of market rents from content producers to content aggregators, through free content distribution and political-influence activities that weaken copyright protections. The expected welfare effects raise concern. Scale economies, network effects, “infinite inventory”, ecosystem effects, and learning effects promote winner-take-all outcomes in the intermediary market while weak IP rights skew investment toward low-cost, short-lived projects ...


Do Patent Challenges Increase Competition?, Stephen Yelderman 2017 University of Notre Dame

Do Patent Challenges Increase Competition?, Stephen Yelderman

Stephen Yelderman

As a general rule, judges and scholars believe settlement is a good thing. But for nearly a century, the Supreme Court has said that patent litigation is categorically different, since it offers the chance to increase competition by freeing the public from the burdens of a monopoly. Based on this theory, and in the hopes of seeing more patent litigation fought to completion, the Court has overturned long-standing common-law doctrines, declined to enforce otherwise-valid contracts, and—in the recent case of Federal Trade Commission v Actavis, Inc—subjected patent settlements to scrutiny under the antitrust laws. Similar reasoning has resulted ...


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