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Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen Nov 2016

Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen

Notre Dame Law Review

One of the most misunderstood and anticompetitive business behaviors in today’s economy is “product hopping,” which occurs when a brand-name pharmaceutical company switches from one version of a drug to another. These switches, benign in appearance but not necessarily in effect, can significantly decrease consumer welfare, impairing competition from generic drugs to an extent that greatly exceeds any gains from the “improved” branded product.

The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it …


The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan Nov 2016

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Faculty Scholarship

When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …


A Brave Attempt: Can The National Collegiate Athletic Association Sanction Colleges And Universities With Native American Mascots?, Kenneth B. Franklin Oct 2016

A Brave Attempt: Can The National Collegiate Athletic Association Sanction Colleges And Universities With Native American Mascots?, Kenneth B. Franklin

Journal of Intellectual Property Law

No abstract provided.


Antitrust And Intellectual Property: A Brief Introduction, Keith N. Hylton Aug 2016

Antitrust And Intellectual Property: A Brief Introduction, Keith N. 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.


P, Mariana Lopez-Galdos Jun 2016

P, Mariana Lopez-Galdos

Chicago-Kent Journal of Intellectual Property

The paper tracks recent developments in the United States and EU competition systems with regard to the different policy tools used to address matters arising from the intersection of IP and competition policies. The analysis compares the enforcement and advocacy efforts carried out by the different antitrust agencies in the United States and EU.

This Article first traces how different authorities with antitrust mandates in the United States have dealt with the issue of balancing the rights of standard essential patent holders with innovation driven public welfare. This article then looks at how the antitrust authorities are using their antitrust …


Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp Apr 2016

Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp

All Faculty Scholarship

This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.

By the second half of …


Permissible Product Hopping: Why A Per Se Legal Rule Barring Antitrust Liability Is Necessary To Protect Future Innovation In The Pharmaceutical Industry, Michelle L. Ethier Mar 2016

Permissible Product Hopping: Why A Per Se Legal Rule Barring Antitrust Liability Is Necessary To Protect Future Innovation In The Pharmaceutical Industry, Michelle L. Ethier

Akron Intellectual Property Journal

Pharmaceutical product hopping is a relatively new phenomenon in which a brand-name pharmaceutical company tactically reformulates a drug and patents the reformulation in an attempt to avoid competition by a generic competitor. When viewed in the context of the HatchWaxman framework, product hopping can effectively eliminate generic competitors from the market, thereby implicating § 2 of the Sherman Act. In addressing antitrust liability, this Note advocates a per se legal approach to product hopping so long as the hop is supported by a valid patent. Although some have argued that deference to the United States Patent and Trademark Office and …


Antitrust And Information Technologies, Herbert J. Hovenkamp Mar 2016

Antitrust And Information Technologies, Herbert J. Hovenkamp

All Faculty Scholarship

Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies of information also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. In addition, changes in the technologies of information affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm.

For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. The digital revolution has occurred in …


Sports And The Law: Text, Cases, And Problems, 5th, Stephen Ross, Paul Weiler, Gary Roberts, Roger Abrams Jan 2016

Sports And The Law: Text, Cases, And Problems, 5th, Stephen Ross, Paul Weiler, Gary Roberts, Roger Abrams

Stephen F Ross

This casebook introduces students to the fundamentals of labor, antitrust, and intellectual property law as applied in the professional and amateur sporting industries. It covers the unique office of the league commissioner and special concerns with the “best interests of sports”; the contract, antitrust, and labor law dimensions of the player-labor market; the peculiar institution of the player agent in a unionized industry; the economic and legal implications of agreements among league owners and responses to rival leagues; the system of commercialized college athletics governed by the NCAA and how law impacts individual sports like golf, tennis and boxing; as …


Dueling Monologues On The Public Domain: What Digital Copyright Can Learn From Antitrust, Timothy K. Armstrong Jan 2016

Dueling Monologues On The Public Domain: What Digital Copyright Can Learn From Antitrust, Timothy K. Armstrong

The University of Cincinnati Intellectual Property and Computer Law Journal

This article, written for the inaugural volume of the University of Cincinnati Intellectual Property and Computer Law Journal, explores the disconnect between contemporary United States intellectual property law and the often quite different consensus views of disinterested expert opinion. Questions concerning how copyright law treats the public domain (that is, uncopyrighted material) supply a lens for comparing the law as it stands with the law as scholars have suggested it should be. The ultimate goal is to understand why a quarter century of predominantly critical scholarship on intellectual property seems to have exerted such limited influence on Congress and …


Facilitating Competition By Remedial Regulation, Kristelia A. García Jan 2016

Facilitating Competition By Remedial Regulation, Kristelia A. García

Publications

In music licensing, powerful music publishers have begun—for the first time ever— to withdraw their digital copyrights from the collectives that license those rights, in order to negotiate considerably higher rates in private deals. At the beginning of the year, two of these publishers commanded a private royalty rate nearly twice that of the going collective rate. This result could be seen as a coup for the free market: Constrained by consent decrees and conflicting interests, collectives are simply not able to establish and enforce a true market rate in the new, digital age. This could also be seen as …


Empirical Evidence Of Drug Pricing Games - A Citizen's Pathway Gone Astray, Robin C. Feldman, Evan Frondorf, Andrew Cordova Dec 2015

Empirical Evidence Of Drug Pricing Games - A Citizen's Pathway Gone Astray, Robin C. Feldman, Evan Frondorf, Andrew Cordova

Robin C Feldman

The FDA’s citizen petition process was created in the 1970s as part of an effort to fashion more participatory regimes, in which ordinary citizens could access the administrative process. The theoretical underpinnings hypothesize that a participatory structure will prevent regulatory agencies from being captured by the very industries they were intended to police. Anecdotal evidence suggests, however, that the FDA’s citizen petition process may have taken a different turn. This empirical study explores whether pharmaceutical companies are systematically using citizen petitions to try to delay the approval of generic competitors. Delaying generic entry of a drug — even by a …