Intellectual Property and the Limits of Antitrust potx

[...]... as follows The first chapter addresses the differences between the core EU and US antitrust principles crucial for the application of antitrust laws to IP rights, including the major differences between the monopolization offense and the abuse of dominance, the state action doctrine and the immunity for government petitioning, all of which are crucial to the understanding of the limits of antitrust. .. R&D and intellectual property, as barriers to entry 38 See Herbert Hovenkamp, The Monopolization Offence, 61 OHIO ST L.J 1035–7 (2000) 39 Grinnell, 384 U.S at 570–71 10 Intellectual property and the limits of antitrust promises.40 The focus is on efficiency and the effect of the conduct on competition is weighed against efficiency considerations.41 This is the legacy of the Chicago School of Law and. .. scope of antitrust regulation of dominant companies’ unilateral conduct That approach was essentially confirmed by the Court of First Instance in its Microsoft6 judgment and in the Commission’s Article 82 Guidance published in December 2008.7 The Trinko decision and the Microsoft judgment are representative of the critical divergences relating to the elements of the monopolization offense and to the. .. from the Commission, COM (2008), available at: http://ec.europa.eu/ competition /antitrust/ art82/index.html The roots of the transatlantic clashes 3 Differences in the assessment of unilateral conduct in the EU and in the US are only a part of the story of antitrust and IP law intersection in the transatlantic context The less discussed but equally important part is the relation between antitrust law and. .. trade secrets and other forms of IP give their owners some exclusivity over the particular use and expression of a piece of information The relation between antitrust law and regulation that may disrupt competitive processes is vital for the antitrust analysis of anticompetitive concerns resulting from IP rights The differences in the approaches taken by the EU and US antitrust enforcers to these issues... ¶29 8 Intellectual property and the limits of antitrust confer market power,32 and that the relevant market to be taken into account in the antitrust enquiry is that of alternative technologies and artistic offerings that are available or likely to be created, that is, the range of available substitutes.33 The exclusive rights granted by IP laws are distinguished from the monopoly power that is the concern... limiting principles, so that there is no doubt which conduct may be considered an antitrust violation In this context, the recent decision of the Court of First Instance in the Microsoft case is particularly disappointing The decision failed to clarify some of the important questions of law raised by the Microsoft case and further blurs the picture when it comes to the assessment of unilateral refusals to... 451, 481 (1992) The roots of the transatlantic clashes 5 on the market has been defined as the ability to restrict output and raise prices significantly above the competitive level.13 The conventional proxy for market power is the defendant’s share of the relevant market and this is where significant differences between the US and the EU arise In the US, market shares in the range of 70–90 percent... secret laws adopted at the state level Yet while the US antitrust authorities treat trade secrets with the same level of deference as IP rights, the European Commission does not In the course of enforcing competition rules, the Commission adopted a definition of protectable trade secrets, asserted that they are not a form of property, and concluded that they do not merit the same level of protection as IP... review of Article 82 and §2, the state action doctrine and the government petitioning immunity in the EU and in the United States It is designed to offer some observations which are helpful in understanding how American and European antitrust enforcers approach competitive concerns resulting from the combination of IP and market power There are numerous ways in which dominant companies may unfairly use their . dominance, the state action doctrine and the immunity for government petitioning, all of which are crucial to the understanding of the limits of antitrust intervention in the EU and in the US. The following. François Lévêque and Howard Shelanski Competition Law, Innovation and Antitrust An Analysis of T ying and Technological Integration Hedvig Schmidt Intellectual Property and the Limits of Antitrust A. sectors of the economy. In the US the Federal Trade Commission (FTC) and the Department of Justice (DOJ) held months- long hearings focusing on the intersection of antitrust and IP laws in 2002 and published