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Full-Text Articles in Law
Patents And Competition: Commercializing Innovation In The Global Ecosystem For 5g And The Internet Of Things, Thomas D. Grant, F. Scott Kieff
Patents And Competition: Commercializing Innovation In The Global Ecosystem For 5g And The Internet Of Things, Thomas D. Grant, F. Scott Kieff
GW Law Faculty Publications & Other Works
Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, interconnections and transactions become more complex around standards and otherwise, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This Chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind …
Regulating Big Tech: Lessons From The Ftc’S Do Not Call Rule, William E. Kovacic, David A. Hyman
Regulating Big Tech: Lessons From The Ftc’S Do Not Call Rule, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
Big Tech (Amazon, Apple, Facebook, and Google) is under regulatory assault. Cases have been brought against each of these companies in multiple countries around the world, but there is an emerging consensus that more needs to be done – most likely in the form of ex ante regulation that prescribes rules of conduct for dominant information platforms. The European Union and the United Kingdom are well on the way to establishing such frameworks, and the United States appears poised to undertake similar measures in the coming years. Most of the debate has focused on the case for ex ante regulation …
Competition Policy Retrospective: The Formation Of The United Launch Alliance And The Ascent Of Spacex, William E. Kovacic
Competition Policy Retrospective: The Formation Of The United Launch Alliance And The Ascent Of Spacex, William E. Kovacic
GW Law Faculty Publications & Other Works
In May 2005, Boeing and Lockheed Martin announced plans to form the United Launch Alliance, a joint venture which combined the only two suppliers of medium-to-heavy national security related launch services to the U.S. government. The Federal Trade Commission reviewed the transaction’s antitrust implications and, in consultation with the Department of Defense, approved the deal in October 2006 subject to restrictions governing ULA’s relationship other satellite manufacturers and providers of launch services. The DOD endorsed the transaction on the ground that the joint venture would increase launch reliability by concentrating production and launch services in a single team rather than …
Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman
Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
In the regulatory state, agency leaders face a fundamental choice: should they “consume” or should they “invest?” “Consume” means launching high profile cases and rule-making. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This essay outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case …
Can't Anyone Here Play This Game? Judging The Ftc's Critics, David A. Hyman, William E. Kovacic
Can't Anyone Here Play This Game? Judging The Ftc's Critics, David A. Hyman, William E. Kovacic
GW Law Faculty Publications & Other Works
The conventional wisdom is that the FTC was the governmental equivalent of a leper colony prior to 1969, and its credibility and reputation were restored only by the adoption of the wise recommendations in the 1969 ABA Report. There is no question that the FTC deserves plenty of criticism for its pre-1969 performance. It is also beyond doubt that there has been a dramatic turn-around in the intervening forty-five years, as the FTC adopted the recommendations in the 1969 Report. But, before we simply genuflect at the wisdom of those responsible for the ABA Report and the inherent virtue of …
Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar
Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar
GW Law Faculty Publications & Other Works
Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …
Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman
Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
Antitrust law has been adopted by 120 jurisdictions worldwide. In more than half of these jurisdictions, the agency charged with enforcing antitrust law also has other responsibilities. The assignment of multiple regulatory tasks can affect the performance of a competition agency in complex and subtle ways. We present a framework for analyzing the consequences of creating public bodies with complex policy portfolios. Using examples from across the administrative state, we analyze the forces that shape the content of an agency’s policy duties, and how the portfolio of assigned duties affects the way an agency approaches its assigned tasks, and its …
Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper
Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper
GW Law Faculty Publications & Other Works
Behavioral economics (BE) examines the implications for decision-making when actors suffer from biases documented in the psychological literature. This article considers how such biases affect regulatory decisions. The article posits a simple model of a regulator who serves as an agent to a political overseer. The regulator chooses a policy that accounts for the rewards she receives from the political overseer — whose optimal policy is assumed to maximize short-run outputs that garner political support, rather than long-term welfare outcomes — and the weight the regulator puts on the optimal long run policy. Flawed heuristics and myopia are likely to …
Removing Property From Intellectual Property And (Intended?) Pernicious Impacts On Innovation And Competition, F. Scott Kieff
Removing Property From Intellectual Property And (Intended?) Pernicious Impacts On Innovation And Competition, F. Scott Kieff
GW Law Faculty Publications & Other Works
Commentators have poured forth a loud and sustained outcry over the past few years that sees property rule treatment of intellectual property (IP) as a cause of excessive transaction costs, thickets, anticommons, hold-ups, hold-outs, and trolls, which unduly tax and retard innovation, competition, and economic growth. The popular response has been to seek a legislative shift towards some limited use of weaker, liability rule treatment, usually portrayed as “just enough” to facilitate transactions in those special cases where the bargaining problems are at their worst and where escape hatches are most needed. This essay is designed to make two contributions. …
The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber
The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber
GW Law Faculty Publications & Other Works
In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …
Competition Policy And The Application Of Section 5 Of The Federal Trade Commission Act, William E. Kovacic, Mark Winerman
Competition Policy And The Application Of Section 5 Of The Federal Trade Commission Act, William E. Kovacic, Mark Winerman
GW Law Faculty Publications & Other Works
Since the 1970’s, U.S. courts generally have narrowed the range of single-firm behavior subject to condemnation as monopolization under the Sherman Act. This article examines the possibility of applying principles from Section 5 of the Federal Trade Commission Act to address apparent instances of anticompetitive conduct that go beyond the reach of other federal antitrust statutes. The FTC, through Section 5, offers a superior platform for elaborating competition policy, has the tools to perform empirical and policy work that can inform the design of legal rules, and is a specialized tribunal whose Section 5 decisions have no collateral effect in …
Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic
Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic
GW Law Faculty Publications & Other Works
Cartels often act like single dominant firms. Because there are a number of difficulties in determining market effects of single dominant firms, this article proposes that enforcement policy recognize the connection between cartels and firms engaged in monopolization. The resulting insight would be useful to determine whether or not cartel conduct should be viewed with suspicion when engaged in or by a dominant firm in a similar industry. Many cartels do not focus solely on suppressing interfirm rivalry; rather, many operate as two-stage mechanisms: the first stage consists of reaching a consensus on a plan to restrict output and curb …
Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic
Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic
GW Law Faculty Publications & Other Works
Mergers have the potential for negative social welfare consequences from increased likelihood or effectiveness of future collusion. This raises the question of whether there are meaningful thresholds for the post-merger industry that should trigger significant scrutiny by the Department of Justice or Federal Trade Commission. This paper provides empirical analysis relevant to this question. The data does not come from an industry in which there were mergers, but instead from an industry in which explicit collusion was admittedly rampant in the 1990's, the Vitamins Industry. Different vitamin products are produced by different numbers of firms, and for different vitamin products, …
The Basics Matter: At The Periphery Of Intellectual Property, F. Scott Kieff, Troy A. Paredes
The Basics Matter: At The Periphery Of Intellectual Property, F. Scott Kieff, Troy A. Paredes
GW Law Faculty Publications & Other Works
Controversies often arise at the interfaces where intellectual property ("IP") law meets other topics in law and economics, such as property law, contract law, and antitrust law. Participants in the debates over how to mediate these interfaces often view each interface as a special case deserving unique treatment under the law. The doctrines of copyright and patent misuse are cases in point: they graft select antitrust principles onto copyright or patent law, even though there is an entirely distinct body of law - antitrust law - designed to deal with the putative concerns about competition that allegedly give rise to …
The Case Against Copyright: A Comparative Institutional Analysis Of Intellectual Property Regimes, F. Scott Kieff
The Case Against Copyright: A Comparative Institutional Analysis Of Intellectual Property Regimes, F. Scott Kieff
GW Law Faculty Publications & Other Works
Contemporary debates over intellectual property ("IP") generally evidence positions that appear to line up at opposite ends of the same axis, with one side arguing for more rights for IP owners under each major regime - patent, trademark, and copyright - and the other side arguing for fewer. Approaching from what some may see as a "more" IP view, this paper offers the counterintuitive suggestion to consider abolishing one of these IP regimes - copyright, at least with respect to the entertainment industry, which represents one of that regime's most commercially significant users. This realization is in fact consistent with …
The Case For Registering Patents And The Law And Economics Of Present Patent-Obtaining Rules, F. Scott Kieff
The Case For Registering Patents And The Law And Economics Of Present Patent-Obtaining Rules, F. Scott Kieff
GW Law Faculty Publications & Other Works
(Note: this is a substantially revised version of Harvard Olin Working Paper No. 415 of May 2003, SSRN Abstract ID No. 392202 (http://ssrn.com/abstract=392202) and includes more detailed discussion of issues including the DOE, willfulness and the Knorr decision, and the FTC Report on patents and antitrust.)
Critics of the patent system suggest the rules for determining patentability should be stricter, subjecting patents to more scrutiny during Patent Office examination. This Article offers a counterintuitive model system under which patent applications are registered, not examined, to elucidate a new normative view that sees present positive law rules for obtaining patents as …
Against Principled Antitrust, Edward T. Swaine
Against Principled Antitrust, Edward T. Swaine
GW Law Faculty Publications & Other Works
Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO …
Institutional Foundations For Economic Legal Reform Transition Economies: The Case Of Competition Policy And Antitrust Enforcement, William E. Kovacic
Institutional Foundations For Economic Legal Reform Transition Economies: The Case Of Competition Policy And Antitrust Enforcement, William E. Kovacic
GW Law Faculty Publications & Other Works
Since the 1970’s, there has been a progression toward market processes in nations once committed to comprehensive central economic planning. Multinational donors and individual Western countries have expended substantial resources to advise these nations about legal reforms designed to promote this progression. Despite enormous uncertainty and upheaval in the transition from planning to markets, economic liberalization remains the strategy of choice for boosting growth. Competition policy laws prohibiting various restraints of trade and creating public or private rights of action to enforce such prohibitions are common elements in the transition environment. This article examines questions about the proper scope of …
Antitrust Policy: A Century Of Economic And Legal Thinking, William E. Kovacic, Carl Shapiro
Antitrust Policy: A Century Of Economic And Legal Thinking, William E. Kovacic, Carl Shapiro
GW Law Faculty Publications & Other Works
Passage of the Sherman Act in the United States in 1890 set the stage for a century of jurisprudence regarding monopoly, cartels, and oligopoly. Among American statutes that regulate commerce, the Sherman Act is unequaled in its generality. The Act outlawed every contract, combination or conspiracy in restraint of trade and monopolization and treated violations as crimes. By these open-ended commands, Congress gave federal judges extraordinary power to draw lines between acceptable cooperation and illegal collusion, between vigorous competition and unlawful monopolization.
By enlisting the courts to elaborate the Sherman Act's broad commands, Congress gave economists a singular opportunity to …