Antitrust and Trade Regulation Commons^™

More Than Just A Toothache? N.C. Dental Leaves Medical Boards Vulnerable: A Look At Telemedicine Companies And Antitrust Challenges To State Prescription Drug Rules, Alexander R. Kalyniuk

William & Mary Business Law Review

Encouraged by technological advancements and favorable provisions within the Affordable Care Act, telemedicine companies that offer online doctor visits are thriving in the health care industry. Online doctor visits are a relatively new and cost-efficient method to provide medical care over long distances that do not require patients to step outside their homes. However, many state medical board scope-of-practice rules prohibit physicians from prescribing medications without an in-person physical examination of the patient, which impedes telemedicine companies from offering their online services in those states. To circumvent this barrier, telemedicine companies may have a prima facie case under § 1 …

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

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 …

Legal Nature Of Consultation Between The European Commission And The President Of The Office Of Electronic Communications In Regulation Of The Telecommunication Market, Mateusz Chołodecki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The aim of the paper is to review the legal nature of the consultation procedure between European Commission (EC) and the President of the Office of Electronic Communications (UKE). In the procedure, EC analyses a draft of the regulatory measures notified by UKE and has right to issue a recommendation. Moreover, the author discusses a problem of the judicial control of the decision issued by UKE as a result of the consultation with EC. According to the author, only the national courts (SOKiK) are legitimate to control the decision.

Maturity Of Regulatory Regime In A Process Of Deregulation Of A Sector. Telecommunication Sector Example, Maria Dąbrowa, Renata Śliwa

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

There is an endeavor undertaken in the paper to outline the relations between deregulation phenomenon and the level of regulatory infrastructure maturity. The content of the article introduces the description of regulatory infrastructure, the methods if its presentation as well as the analytical approach to the relations between deregulation and regulatory infrastructure in telecommunications sector. The empirical analysis was directed to verify the hypothesis on the possible, positive impacts of the maturity of regulatory infrastructure on the scale of deregulation in telecommunications. The notions of the scale of deregulation and the condition of sectoral regulator were defined. The methodology of …

Journalistic Confidentiality In The Codes Of Journalistic Ethics, Ewa Galewska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Journalistic confidentiality and revealing information constituting thereof should be examined not only as a legal problem but also issue of highly important meaning in the light of journalists’ professional ethics. Journalists select values they intend to protect. When selecting such values journalists should apply provisions of law that are of key importance here. Provisions of law however should be complemented by norms of professional ethics aiming at supporting journalists making such difficult selection.

Connections To Non-Geographic Numbers. Comment To The Judgment Of The Court Of Justice Of The European Union Of 14 April 2016, C – 397/14, Łukasz Pirożek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Contents: I. Introduction II. The subject of the case III. The reasons of the judgment of the Court of Justice of the EU IV. Summary

Internet Of Things. Medical Treatment Delivered By Computers: Fiction Or Reality?, Ewa M. Kwiatkowska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article discusses the Internet of Things (IoT) applications in medicine. The advantages of using electronic medical records are described. The possibilities of mobile applications and peripheral devices related to health and physical activity utilization are presented. The opportunities and threats that may arise from computerization of health care are discussed.

Zero-Rating In Internet Access Services And Specialised Services, Andrzej Nałęcz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Zero-rating is the practice of offering unlimited access to certain internet content to data plan subscribers in mobile communication networks. It is pertinent to the concept of network neutrality. The article explains the various types of zero-rating and presents their positive and negative consequences. The positives relate most of all to a beneficial influence on the competition between providers of internet access services. The negatives consist in a detrimental influence on the development of innovative internet content. Zero-rating is considered a threat to network neutrality even in developing countries, even though it is there that social development might benefit the …

New Legal Rules Of Providing Internet Access Services, Stanisław Piątek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Article presents the consequences of EU regulation 2015/2120 concerning open internet access for providers of access services and end-users. The scope and legal character of new rules are discussed. Elaborated are guarantees for end-users and restrictions imposed on service providers concerning traffic management measures. The article explains effects of new rules concerning content of contracts and enforcement of service provider’s responsibility for non-performance of quality requirements of service contracts. The BEREC guidelines regarding the monitoring and enforcing the regulation were presented.

Postal Secrecy And Its Protection, Mariusz Czyżak

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The notion of the postal secrecy and instruments of its legal protection are discussed in the article. The obligations of postal operators to protect the postal secrecy and the penal consequences of administrative and criminal law on account of the postal secrecy contravention are presented. In the article it was also indicated that the protection of the postal secrecy does not lose its importance considering an increase of the volume of courier services related to the development of electronic commerce.

Main Changes In The Law On Supporting The Development Of Telecommunications Networks And Services, Wojciech Dziomdziora

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article presents the main changes to the law on supporting the development of broadband services and networks. Changes in the subject and object scope of the Act were described. Article presents the definition of the technical infrastructure – as a new concept in the law Discussed is the principle of access to technical infrastructure and issues of information obligations imposed on operators, and telecommunications company’s right to inspect the technical infrastructure. Separate paragraph is devoted to the protection of infrastructure because of safety, health, defense and public order. Briefly presented are provisions on the point of information for telecommunications. …

Konrad Stolarski, Prohibition Of The Abuse Of Dominant Position On The Telecommunication Markets In The Law Of The European Union, Cars, Wydawnictwo Naukowe Wydziału Zarządzania Uniwersytetu Warszawskiego, Warsaw 2015, Waldemar Hoff

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Ewa Galewska, The Obligation To Conclude Interconnection Agreements, Oficyna Wolters Kluwer Business, Warszawa 2015 (Reviewed By Kamil Mieszkowski), Kamil Mieszkowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

From The Editor, Stanisław Piątek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Editorial

The Mascot Manifesto, Zachary S. O'Driscoll

Learning Showcase 2016: A Celebration of Discovery, Transformation and Success

My law review article analyzes the constitutionality of the Lanham Act, a federal trademark statute. Under the Lanham Act, trademark owners are prohibited from registering trademarks that may be considered ''disparaging'' or ''scandalous'' to others. However, what is considered ''disparaging'' or ''scandalous'' is determined under a subjective standard. What is offensive to one trademark examiner for purposes of registering a trademark may not be offensive to another. Today, the Washington Redskins, a professional football franchise, finds themselves at the heart of the Lanham Act controversy. But underlying this trademark litigation is a deeper concern: whether the Lanham Act itself is …

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

Georgia Journal of Law & Technology

No abstract provided.

Uncertainty And Reverse Payments, Ramsi Woodcock

Law Faculty Scholarly Articles

The current approach to “reverse payment” settlements of drug patent litigation seeks to preclude only those settlements guaranteed to harm consumers, rather than all that could harm them. Antitrust tolerates the possibility of harm in order to give firms the freedom to make settlements that might benefit consumers, relative to what courts would achieve under patent law. Antitrust’s mission is not, however, to improve upon outcomes under patent law, but rather to prevent harm to consumers. Accordingly, antitrust must minimize the possibility of harm, even if that precludes the chance of gain. I show that a ban on all settlements …

Do Patent Challenges Increase Competition?, Stephen Yelderman

Journal Articles

This Article is the first to seriously scrutinize the claim that patent challenges lead to increased competition. It identifies a number of conditions that must hold for a patent challenge to provide this particular benefit, and evaluates the reasonableness of assuming that the pro-competitive benefits of patent challenges are generally available. As it turns out, there are a number of ways these conditions can and regularly do fail. This Article synthesizes legal doctrine, recent empirical scholarship, and several novel case studies to identify categories of challenges in which the potential benefits for competition are smaller than previously thought or, in …

Economic Law, Inequality, And Hidden Hierarchies On The Eu Internal Market, Damjan Kukovec

Michigan Journal of International Law

This Article has several aims. First, the aim is to show the continuing importance and relevance of antitrust and international trade lawyers in countering the concentration of power in the hands of the few or in some geographic areas of the world, if some of the assumptions of antitrust and trade are adjusted. Second, the goal is to articulate a particular analysis from the perspective of the (European) periphery. As the recent Euro crises and the near exit of Greece from the Union show, the European prospect of development for all has not arrived. This Article will articulate the privilege …