Law Commons^™

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Georgia Law Review

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Compulsory Licensing: A Potential Solution To The Antitrust Dilemma Of Technology Standards Setting, Shen Peng

Northwestern Journal of Technology and Intellectual Property

The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.

For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Selling Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real …

Competition And Innovation: The Breakup Of Ig Farben, Felix Poege

Faculty Scholarship

The relationship between competition and innovation is difficult to disentangle, as exogenous variation in market structure is rare. The 1952 breakup of Germany’s leading chemical company, IG Farben, represents such a disruption. After the Second World War, the Allies occupying Germany imposed the breakup because of IG Farben’s importance for the German war economy instead of standard antitrust concerns. In technology areas where the breakup reduced concentration, patenting increased strongly, driven by domestic firms unrelated to IG Farben. An analysis of patent texts shows that an increased propensity to patent does not drive the effect. Descriptively, IG Farben’s successors increased …

Digital Cluster Markets, Herbert J. Hovenkamp

All Faculty Scholarship

This paper considers the role of “cluster” markets in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them.

One foundational requirement of markets in antitrust cases is that they consist of products that are very close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations.

Nevertheless, clustering noncompeting products into a single market for purposes of antitrust analysis can be valuable, provided that its limitations are understood. Clustering contributes to market power when (1) many customers …

Monopolizing Digital Commerce, Herbert J. Hovenkamp

All Faculty Scholarship

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

Patents On 5g Standards Are Not Matters Of National Security, Jorge L. Contreras

Utah Law Faculty Scholarship

Recent arguments for stronger patent rights, particularly on 5G wireless telecommunications technologies, are relevant to discussions of national industrial policy and economic development, but are not matters of national security.

Balance And Standardization: Implications For Competition And Antitrust Analysis, Justus Baron, Jorge L. Contreras, Pierre Larouche

Utah Law Faculty Scholarship

Most technical standards development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making, and appeals. Unlike other aspects of SDO governance, relatively little scholarly research has considered the history, scope, and interpretation of SDO balance requirements. Likewise, existing case law and agency guidance offer little assistance in understanding precisely how these balance principles translate into specific antitrust requirements that apply to standards development. Given the absence of specific guidance on the meaning and implications of balance requirements for SDOs under the antitrust laws, it is necessary to review the development …

Antitrust And Platform Monopoly, Herbert J. Hovenkamp

All Faculty Scholarship

Are large digital platforms that deal directly with consumers “winner take all,” or natural monopoly, firms? That question is surprisingly complex and does not produce the same answer for every platform. The closer one looks at digital platforms the less they seem to be winner-take-all. As a result, competition can be made to work in most of them. Further, antitrust enforcement, with its accommodation of firm variety, is generally superior to any form of statutory regulation that generalizes over large numbers.

Assuming that an antitrust violation is found, what should be the remedy? Breaking up large firms subject to extensive …

Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey

Faculty Scholarship

I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.

A Framework For Evaluating Willingness Of Frand Licensees, Jorge L. Contreras

Utah Law Faculty Scholarship

An increasing number of cases around the world turn on whether a manufacturer of a product – e.g., a smartphone, a tablet or a car -- (an “implementer”) is willing to pay a “fair, reasonable and nondiscriminatory” (FRAND) royalty for patents that are essential to an industry standard embodied in that product (standards-essential patents or SEPs). This determination is important both to the analysis of the appropriateness of an injunction under the 4-factor eBay test in the U.S., and for assessing the appropriateness of injunctive relief under the Huawei v. ZTE competition law case in the EU. This essay explores …

Balance Requirements For Standards Development Organizations: A Historical, Legal And Institutional Assessment, Justus Baron, Jorge L. Contreras, Pierre Larouche

Utah Law Faculty Scholarship

Most technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making and appeals. These requirements arise from numerous sources including antitrust law, international trade law, public procurement requirements and institutional norms. Yet balance criteria lack a generally-accepted definition and the manner in which they are implemented varies, sometimes dramatically, among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders, including in the development of intellectual property rights policies. This article explores the origins and meaning of …

The Music Industry: Drowning In The Stream, Jonathan Croskrey

Journal of the National Association of Administrative Law Judiciary

The Department of Justice is reviewing two of it's oldest consent decrees, which were entered into with ASCAP and BMI. ASCAP and BMI are the two original performing rights organizations and existed well before streaming. This article analyzes copyright and antirust law through the lens of modern technology and the current landscape of the music industry. It examines whether the consent decrees should be removed or modified and what the consequences of each would be.

United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller

Catholic University Law Review

Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

“Sacrifice And Recoupment” In The Antitrust Analysis Of Patent Settlements: Actavis Through The Lens Of Brooke Group, Aspen Skiing, And Trinko, Bryan Gant

American University Business Law Review

Patent settlements are typically procompetitive, benefiting not only the settling parties but also the courts and the general public. But in rare cases patent settlements might instead harm competition, and thus raise antitrust concerns. How are courts to determine when antitrust scrutiny should — and, more importantly, should not — be applied to patent settlements? The answer ostensibly came in the Supreme Court’s 2013 decision in FTC v. Actavis, Inc. Under Actavis, antitrust scrutiny of patent settlements may “sometimes” be appropriate where there is a “large,” “unexplained” “reverse payment” from the patentee to the patent challenger. Unless, that is, the …

Hacking Antitrust: Competition Policy And The Computer Fraud And Abuse Act, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer "without authorization or exceeding authorized access," has often been criticized for clashing with online norms, over-criminalizing common behavior, and infringing freedom-of-expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Courtset to consider the law in its current October Term 2020.

This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, …

Race Cartels: How Constructor Collaboration Is Curbing Innovation In Formula 1, Chandler C. Gerard-Reimer

Vanderbilt Journal of Entertainment & Technology Law

Formula 1 is in the midst of a copycat scandal: technology has made it possible for teams to reverse engineer clones of competitors’ race cars. This is a less than ideal state of affairs for the championship series, which prides itself on being the pinnacle of motorsport and automotive innovation, thanks in large part to the cars’ rapid rate of technological advancement. In order to address this problem, the Fédération Internationale de l’Automobile (FIA), Formula 1’s governing body, must increase independent innovation efforts by amending the technical regulations to restrict the extent of presently allowed inter-team collaboration. Worried that the …

No License, No Problem – Is Qualcomm’S Ninth Circuit Antitrust Victory A Patent Exhaustion Defeat?, Jorge L. Contreras, Jorge L. Contreras

Utah Law Faculty Scholarship

The Ninth Circuit’s recent decision in FTC v. Qualcomm (9th Cir., Aug. 11, 2020) is generally viewed as a resounding victory for Qualcomm. But in praising Qualcomm’s egalitarian approach toward rival chip makers, the Ninth Circuit points out that instead of granting licenses to these rivals, Qualcomm merely “declines to enforce its patents” against them “even though they practice Qualcomm’s patents”. As such, the Ninth Circuit states that Qualcomm’s “policy toward rival chipmakers could be characterized as ‘no license, no problem’”. Yet, from the standpoint of patent exhaustion, this approach could actually be a very big problem, not only for …

Antitrust And Competition Issues, Jorge L. Contreras

Utah Law Faculty Scholarship

This Chapter offers a broad overview of the impact of U.S. antitrust laws on IP licensing and transactions. A basic understanding of antitrust law is critical to the analysis of IP licensing arrangements, whether concerning patents, copyrights or trademarks. This chapter offers a summary of the antitrust doctrines that arise frequently in IP and technology-focused transactions — price fixing and market allocation, resale price maintenance, tying, monopolization, refusals to deal, standard setting and pay-for-delay settlements, with coverage of the major cases and enforcement agency guidance. Antitrust issues also play a role in the analysis of joint ventures, which are discussed …

Can David Really Beat Goliath? A Look Into The Anti-Competitive Restrictions Of Apple Inc. And Google, Llc, Emily Feeley

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp

All Faculty Scholarship

The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.

However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again …

Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide, Wendy J. Gordon

Faculty Scholarship

In Oracle America, Inc. v. Google LLC, the Federal Circuit undermined copyright law’s deference to patent law and, in doing so, delivered a blow to both regimes. Copyright’s deference— including a historic refusal to enforce rights that might undermine the public’s liberty to copy unpatented inventions-- is a necessary part of preserving inventors’ willingness to accept the short duration, mandatory disclosure, and other stringent bargains demanded by patent law. Deference to patent law is also integral to copyright law’s interior architecture; copyright’s refusal to monopolize functional applications of creative work lowers the social costs that would otherwise be imposed by …

Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp

All Faculty Scholarship

A deep split in American innovation policy has arisen between new economy and old economy innovation. In a recent policy statement, the Antitrust Division of the Justice Department takes a position that tilts more toward the old economy. Its December, 2019, policy statement on remedies for Standard Essential Patents issued jointly with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology reflects this movement.

The policy statement as a whole contains two noteworthy problems: one is a glaring omission, and the other is a mischaracterization of the scope of antitrust liability. Both positions are strongly …

Movements, Moments, And The Eroding Antitrust Consensus, Michael Wolfe

Fordham Intellectual Property, Media and Entertainment Law Journal

Timothy Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018). $14.99.

Timothy Wu’s book, The Curse of Bigness, offers a brief history on and critical perspective of antitrust law’s development over the last century, calling for a return to a Brandeisian approach to the law. In this review-essay, I use Wu’s text as a starting point to explore antitrust law’s current political moment. Tracing the dynamics at play in this debate and Wu’s role in it, I note areas underexplored in Wu’s text regarding the interplay of antitrust law with other forms of …

Brief Of Amicus Curiae Professor Jorge L. Contreras In Support Of Appellee And Affirmance In Ftc V. Qualcomm, Jorge L. Contreras

Utah Law Faculty Scholarship

Qualcomm participated in the development of 3G and 4G wireless telecommunication standards under the auspices of two SDOs, the Telecommunications Industry Association (“TIA”) and the Alliance for Telecommunications Industry Solutions (“ATIS”). Each of these SDOs had adopted intellectual property rights policies (IPR Policies) that required their participants to grant licenses of SEPs to implementers of their standards on FRAND terms. Yet, over the course of several years, Qualcomm refused to license its SEPs to numerous actual and potential modem chip rivals including MediaTek, Project Dragonfly (a joint venture of NTT DoCoMo, Samsung and several Japanese manufacturers), Samsung, VIA Telecom, Intel, …

The New Madison Approach To Antitrust Law And Intellectual Property Law, Anita Alanko

Catholic University Journal of Law and Technology

The New Madison Approach has recently been introduced by the Department of Justice Antitrust Division in an effort to address a weakening of patent rights in recent years. The approach has four premises: patent hold-up is not an antitrust problem, standard setting organizations should better protect against patent hold-out to ensure maximum incentives to innovate, patent holder injunction rights should be protected and not limited, and a unilateral and unconditional refusal to license a valid patent should be per se legal. After providing an introduction to the relevant law and terms of art, support and criticism of the New Madison …

Franchise Participants As Proper Patent Opponents: Walker Process Claims, Robert W. Emerson

Vanderbilt Journal of Entertainment & Technology Law

Franchise parties may be sued for patent infringement, or they may seek to sue others for an antitrust injury as the result of a fraudulently obtained patent. Indeed, franchisors and franchisees may simultaneously fall under both categories-sued for infringement but aggrieved because the very basis of that suit is illegitimate in their eyes. These franchise parties may turn for relief to a patent-validity challenge authorized in the seminal case Walker Process Equipment, Inc. v. Food Machine & Chemical Corp. Franchise participants-franchisees and franchisors alike-may be the ideal Walker Process claimants. When these types of cases occur, the damages within the …

Frand And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role is to …

Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.

The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and raising entry barriers. …