In our Autumn 2013 Journal, we present a Symposium on Antitrust and Intellectual Property, explore Current Cases in Anglo/Lafarge and feature this edition’s Classic, Appropriating the Returns from INdustrial Research and Development. Click here to order a physical copy of our Autumn 2013 Journal.
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Letter from the Editor
Letter from the Editor – Fall 2013
The CPI Autumn 2013 issue features contributions with a divergence of views (David S. Evans, Antonio Bavasso)
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A Symposium on Antitrust and IP
Competition Authorities Support Grasshoppers: Competition Law as a Threat to Innovation
The danger to innovation is all too obvious for those who can see: it pays to be a grasshopper rather than an ant better to be a copyist than an innovator. Sir Robin Jacob (University of College London)
Intellectual Property Experimentalism By Way Of Competition Law
Competition law and Intellectual Property have divergent intellectual cultures the former more pragmatic and experimentalist; the latter influenced by natural law and vested rights. Tim Wu (US Federal Trade Commission)
Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ
In modern antitrust law, intellectual property rights (IPRs) are treated like all other forms of property. Joshua D. Wright (US Federal Trade Commission) & Douglas H. Ginsburg (US Court of Appeals, DC Circuit)
Consumer Welfare In Competition And Intellectual Property Law
Whether antitrust policy should pursue a goal of general welfare or consumer welfare has been debated for decades. The academic debate is much more varied than the case law, however, which has consistently adopted consumer welfare as a goal.
Legal Remedies For Patent Infringement: From General Principles To FRAND Obligations For Standard Essential Patents
At present, the traditional informal mechanisms for setting FRAND rates for SEPs have come under extensive attack by the Federal Trade Commission and elsewhere, from those who believe more limited damages and less frequent injunctions o!er the best path to resolving disputes over Standard Essential Patents. In this article we take issue with those conclusions. Richard A. Epstein (New York University School of Law) & David J. Kappos (Cravath, Swaine & Moore LLP)
Licensing Of Standard Essential Patents: Antitrust Intervention Is Not Big Enough A Fix
This piece argues that the way antitrust intervention is being framed allows regulators to restrict the behavior of the patent holder staying away from the issue of FRAND determination. (Eliana Garces Tolon, EC)
Justifying Antitrust Intervention in ICT Sector Patent Disputes: How to Address the Hold-Up Problem
The economic justification for any regulatory intervention in patent litigation, especially those for standard essential patents, comes from the view that hold-up of users of patents is endemic to some industries, especially ICT. The paper reviews these reasons why hold-up is more likely in ICT industries and discusses the type of evidence that is available. (Kai-Uwe Kuhn, University of Michigan).
Pay-for-Delay: What Do We Disagree On?
Antitrust concerns about pay-for-delay patent settlements are based on two theories of harms, one that stresses the need for courts to review the validity of patents and one that emphasizes the probabilistic nature of patent rights. Pierre Regibeau (CRA and Imperial College).
Pay-for-Delay
This article lays out the economics of competition between branded and generic pharmaceuticals and its welfare consequences. I explain the logic behind so-called pay-for-delay or reverse payments in the context of the current IP environment where weak (probabilistic) patents are frequently granted by the PTO. Fiona Scott Morton (Yale University).
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Current Cases and Issues
There is Always a First Time: Coordinated Effects via Vertical Structural Changes in Anglo/Lafarge
This article explores the UK Competition Commission’s Anglo/Lafarge merger decision (2012) focusing on the reasoning for a finding of coordinated effects in cement. Julie Bon (UK Competition Commission), Pietro Crocioni (UK Office of Communications) & Francesca Sala (UK Competition Commission).
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The Classics
An Introduction to Appropriating the Returns from Industrial Research and Development
An introduction to Appropriating the Returns from Industrial Research and Development, the classic that describes the results of an inquiry into appropriability conditions in more than one hundred manufacturing industries, and includes informed opinions about an industry’s technological and economic environment rather than quantitative measures of inputs and outputs. David S. Evans (University of Chicago Law).
Appropriating the Returns from Industrial Research and Development (1950)(reprint)
The classic that describes the results of an inquiry into appropriability conditions in more than one hundred manufacturing industries, and includes informed opinions about an industry’s technological and economic environment rather than quantitative measures of inputs and outputs. Richard C. Levin (Yale University), Alvin K. Klevorick (Yale University), Richard R. Nelson (Columbia University), Sidney G. Winter (Yale University).
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