There is no doubt that the enforcement of competition law is an important part of global business law and policy. Proper enforcement of competition law increases market efficiencies, allows for innovation and creative destruction, and ensures consumers will be able to access the best products and services. However, over-enforcement or improper enforcement can lead to the opposite results destroying consumer welfare and halting vital innovation. Balancing these concerns have led to many improvements in the application of competition law, especially concerning the use of economics to inform enforcement. Yet, more analysis is needed on how to analyze matchmaker businesses under competition laws, even though we are in the midst of a matchmaker platform renaissance. A matchmaker -- sometimes referred to as a multi-sided platform -- is a “business that helps two or more different kinds of customers find each other and engage in mutually beneficial interactions.” In fact, there have increasingly been calls for enforcement against these business models without an adequate understanding how the economics differ from non-matchmaker models and how matchmaker platforms create consumer welfare. It is important we get enforcement right on these new platforms, which make up “three of the five most valuable companies in the world in 2015” and “seven of the ten start-ups with the highest market values.”
{"title":"Reconciling the Matchmaker Economy with Competition Policy","authors":"D. Balto, M. Lane","doi":"10.2139/ssrn.3218330","DOIUrl":"https://doi.org/10.2139/ssrn.3218330","url":null,"abstract":"There is no doubt that the enforcement of competition law is an important part of global business law and policy. Proper enforcement of competition law increases market efficiencies, allows for innovation and creative destruction, and ensures consumers will be able to access the best products and services. However, over-enforcement or improper enforcement can lead to the opposite results destroying consumer welfare and halting vital innovation. Balancing these concerns have led to many improvements in the application of competition law, especially concerning the use of economics to inform enforcement. Yet, more analysis is needed on how to analyze matchmaker businesses under competition laws, even though we are in the midst of a matchmaker platform renaissance. A matchmaker -- sometimes referred to as a multi-sided platform -- is a “business that helps two or more different kinds of customers find each other and engage in mutually beneficial interactions.” In fact, there have increasingly been calls for enforcement against these business models without an adequate understanding how the economics differ from non-matchmaker models and how matchmaker platforms create consumer welfare. It is important we get enforcement right on these new platforms, which make up “three of the five most valuable companies in the world in 2015” and “seven of the ten start-ups with the highest market values.”","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"320 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124535667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Competition policy faces new challenges in its application to digital markets and online platforms. This article develops an analytical framework that rests on three pillars: (a) only conduct that, by restricting competition, reduces long-term social welfare should be prohibited; (b) in applying such a rule, it is important to bear in mind that, under imperfect information, a decision-maker’s task is to minimise the risk and cost of both false convictions and false acquittals: (c) dynamic efficiency is a key driver of long-term social welfare, economic growth and productivity. The article goes on to apply this framework to three specific issues that are debated in relation to digital markets and online platforms: (a) market definition; (b) barriers to entry, including data and Big Data; (c) innovation.
{"title":"Online Platforms and Antitrust: Where Do We Go From Here?","authors":"Renato Nazzini","doi":"10.2139/ssrn.3249011","DOIUrl":"https://doi.org/10.2139/ssrn.3249011","url":null,"abstract":"Competition policy faces new challenges in its application to digital markets and online platforms. This article develops an analytical framework that rests on three pillars: (a) only conduct that, by restricting competition, reduces long-term social welfare should be prohibited; (b) in applying such a rule, it is important to bear in mind that, under imperfect information, a decision-maker’s task is to minimise the risk and cost of both false convictions and false acquittals: (c) dynamic efficiency is a key driver of long-term social welfare, economic growth and productivity. The article goes on to apply this framework to three specific issues that are debated in relation to digital markets and online platforms: (a) market definition; (b) barriers to entry, including data and Big Data; (c) innovation.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126437257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment. I also provide new analysis demonstrating that critiques of earlier empirical studies showing adverse price effects for airlines and banking are generally invalid and that addressing the valid subset of those critiques actually increases the estimated price effects. I further demonstrate that the various excuses for delaying enforcement action are meritless. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102.
{"title":"New Evidence, Proofs, and Legal Theories on Horizontal Shareholding","authors":"E. Elhauge","doi":"10.2139/ssrn.3096812","DOIUrl":"https://doi.org/10.2139/ssrn.3096812","url":null,"abstract":"This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment. I also provide new analysis demonstrating that critiques of earlier empirical studies showing adverse price effects for airlines and banking are generally invalid and that addressing the valid subset of those critiques actually increases the estimated price effects. I further demonstrate that the various excuses for delaying enforcement action are meritless. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125330479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Spanish Abstract: La exigencia de independencia de las autoridades administrativas de defensa de la competencia existentes en nuestro país (CNMC y autoridades autonómicas) se materializa en una regulación de su estructura, organización y funcionamiento sembrada de cautelas destinadas a asegurar que sus decisiones se fundamentan en el análisis jurídico y económico y están libres de interferencias políticas o de presiones de los grupos de interés afectados. Garantizar el libre funcionamiento del mercado en interés de los consumidores es el objetivo que debe orientar a las autoridades de defensa de la competencia en el desempeño de sus funciones y ello exige un compromiso activo y claro con ese propósito. A partir de esa idea este trabajo rastrea la evidencia anecdótica que proporcionan noticias en prensa publicadas sobre la mayor o menor credibilidad del compromiso de sus integrantes en su lucha contra las restricciones a la competencia en aras bienestar de consumidor. Esa es la buena muestra de su independencia de hecho. English Abstract: Spanish Competition authorities’ independence requirement is materialized in a legal regime of their structure, organization and operation full of cautions to ensure that their decisions are grounded on legal and economic analysis and are free from political interference or pressure from affected stakeholders. Ensuring the free and undistorted operation of markets in the interests of consumers is the compass that should guide competition authorities in performing their duties. This entails an active and clear commitment to that end. Based on this idea, this paper traces annectodal evidence found in the news (published press articles) about the greater or lesser credibility of the members of our competition authorities’ commitment in their fight against anti-competitive restrictions and furthering consumer welfare. That is a good sign of their de facto independence.
{"title":"Independencia de las Autoridades Españolas de Defensa de la Competencia (Independence of Spanish Competition Authorities)","authors":"F. Marcos","doi":"10.2139/ssrn.3040023","DOIUrl":"https://doi.org/10.2139/ssrn.3040023","url":null,"abstract":"<b>Spanish Abstract:</B> La exigencia de independencia de las autoridades administrativas de defensa de la competencia existentes en nuestro país (CNMC y autoridades autonómicas) se materializa en una regulación de su estructura, organización y funcionamiento sembrada de cautelas destinadas a asegurar que sus decisiones se fundamentan en el análisis jurídico y económico y están libres de interferencias políticas o de presiones de los grupos de interés afectados. Garantizar el libre funcionamiento del mercado en interés de los consumidores es el objetivo que debe orientar a las autoridades de defensa de la competencia en el desempeño de sus funciones y ello exige un compromiso activo y claro con ese propósito. A partir de esa idea este trabajo rastrea la evidencia anecdótica que proporcionan noticias en prensa publicadas sobre la mayor o menor credibilidad del compromiso de sus integrantes en su lucha contra las restricciones a la competencia en aras bienestar de consumidor. Esa es la buena muestra de su independencia de hecho. <b>English Abstract:</b> Spanish Competition authorities’ independence requirement is materialized in a legal regime of their structure, organization and operation full of cautions to ensure that their decisions are grounded on legal and economic analysis and are free from political interference or pressure from affected stakeholders. Ensuring the free and undistorted operation of markets in the interests of consumers is the compass that should guide competition authorities in performing their duties. This entails an active and clear commitment to that end. Based on this idea, this paper traces annectodal evidence found in the news (published press articles) about the greater or lesser credibility of the members of our competition authorities’ commitment in their fight against anti-competitive restrictions and furthering consumer welfare. That is a good sign of their de facto independence.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":" 32","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120971301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Koren W. Wong-Ervin, D. Ginsburg, Bruce H. Kobayashi, Joshua D. Wright
This comment is submitted to the U.S. Antitrust Agencies by the Global Antitrust Institute (GAI) at Scalia Law School, George Mason University on the Agencies' Proposed Update of the Antitrust Guidelines for the Licensing of Intellectual Property. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze conduct involving standard-essential patents.
{"title":"Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University, on the U.S. Antitrust Agencies’ Proposed Update of the Antitrust Guidelines for the Licensing of Intellectual Property","authors":"Koren W. Wong-Ervin, D. Ginsburg, Bruce H. Kobayashi, Joshua D. Wright","doi":"10.2139/ssrn.2841207","DOIUrl":"https://doi.org/10.2139/ssrn.2841207","url":null,"abstract":"This comment is submitted to the U.S. Antitrust Agencies by the Global Antitrust Institute (GAI) at Scalia Law School, George Mason University on the Agencies' Proposed Update of the Antitrust Guidelines for the Licensing of Intellectual Property. The GAI Competition Advocacy Program provides a wide-range of recommendations to facilitate adoption of economically sound competition policy, including how to analyze conduct involving standard-essential patents.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127655565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper directs the ‘visual turn’ in criminology to corporate crime, a topic that has been understudied by cultural criminologists. A recent trend of white collar crime movies suggests that film can compellingly critique economic crime and unethical business cultures. This paper studies how law enforcement agencies, in particular competition authorities have connected with this trend by introducing ‘leniency thrillers’ in their communicative strategy: realistic docudramas in which fictional cartels are exposed and punished. These films’ narratives about cartel enforcement are reconstructed by studying how the films portray cartels, perpetrators and their motives, and the regulator. An analysis of four films produced in four jurisdictions demonstrates that the films deter only to the extent that the local legal and political-economic context allows: the British film reflects that country’s neoliberal ‘pro-business’ climate, while the Swedish film depicts businesses as socially responsible; and the Dutch film is pragmatic rather than moralistic. Only the Australian film is explicitly punitive in its narrative as well as its imaginary, and exemplifies the persuasive potential of film in enforcement.
{"title":"The Leniency Thriller as a New Film Genre. The Use of Dramatised Deterrence Films in Cartel Enforcement","authors":"J. Erp","doi":"10.2139/ssrn.2838234","DOIUrl":"https://doi.org/10.2139/ssrn.2838234","url":null,"abstract":"This paper directs the ‘visual turn’ in criminology to corporate crime, a topic that has been understudied by cultural criminologists. A recent trend of white collar crime movies suggests that film can compellingly critique economic crime and unethical business cultures. This paper studies how law enforcement agencies, in particular competition authorities have connected with this trend by introducing ‘leniency thrillers’ in their communicative strategy: realistic docudramas in which fictional cartels are exposed and punished. These films’ narratives about cartel enforcement are reconstructed by studying how the films portray cartels, perpetrators and their motives, and the regulator. An analysis of four films produced in four jurisdictions demonstrates that the films deter only to the extent that the local legal and political-economic context allows: the British film reflects that country’s neoliberal ‘pro-business’ climate, while the Swedish film depicts businesses as socially responsible; and the Dutch film is pragmatic rather than moralistic. Only the Australian film is explicitly punitive in its narrative as well as its imaginary, and exemplifies the persuasive potential of film in enforcement.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121307216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Spanish Abstract: Este trabajo pasa revista a la aplicacion de las prohibiciones de conductas anticompetitivas en Espana en los ultimos anos. Tras un breve recorrido por la aplicacion administrativa de las normas de defensa de la competencia desarrollada por la Comision Nacional de los Mercados y de la Competencia (CNMC) en sus casi tres anos de existencia, el trabajo se centra la revision judicial como el reto mas preocupante que, hoy en dia, afronta la defensa de la competencia en Espana. En efecto, varias decisiones erraticas de la Audiencia Nacional y del Tribunal Supremo, anulando con fundamentos varios las resoluciones sancionadoras de la extinta Comision Nacional de la Competencia (CNC), evidencian una preocupante incontinencia judicial que ha frustrado la labor desarrollada por la CNC en su sexenio de existencia, y complican aun mas la situacion a que se enfrenta la CNMC. Palabras Clave: Defensa de la Competencia, Aplicacion Publica, Aplicacion administrativa, Multas, Caducidad, Inspecciones. English Abstract: This article reviews public enforcement of the prohibitions of anti-competitive behavior in Spain in recent times. After a brief tour of administrative enforcement of competition rules by the National Commission Markets and Competition (CNMC) in its nearly three years of existence, this article focuses on judicial review as the most worrying challenge faced by competition law enforcement in Spain nowadays. Indeed, several erratic decisions of the High Court (Audiencia Nacional) and of the Supreme Court, annulling on different grounds many punitive resolutions of the defunct National Competition Commission (CNC), show a disturbing legal incontinence that has frustrated the efforts made by the CNC in its six years of existence, and further complicates the situation faced by the CNMC.
摘要:本文回顾了近年来西班牙反竞争行为禁令的实施情况。经过短暂访问《行政规则竞争由国家市场和竞争委员会(联)在其近了三年,工作重点是订正司法挑战更令人不安的是,今天一天在西班牙,面对的竞争。事实上,一些国家高等法院和最高法院的决定erraticas,抵消一些犯罪决议基础交易国家竞争委员会(CNC),担忧司法失禁了沮丧的工作由CNC的年轻,和复杂情况面临联。关键词:反垄断，公共执法，行政执法，罚款，期限，检查。本文回顾了最近西班牙对反竞争行为禁令的公开执行情况。在对国家市场和竞争委员会(CNMC)成立近三年的竞争规则行政执行情况进行了简要考察之后，本文着重讨论了司法审查，这是目前西班牙竞争法执行所面临的最令人担忧的挑战。,若干国家erratic决定of the High Court(观众)和最高法院的决议,许多punitive annulling on不同球场of the defunct National Competition Commission (CNC),显示法律disturbing incontinence that has frustrated the努力made by the CNC in its 6至当日,and further complicates faced by the联的状况。
{"title":"Desorden Judicial En Defensa De La Competencia (Judicial Disorder in Competition Law Enforcement)","authors":"F. Marcos","doi":"10.2139/SSRN.3028712","DOIUrl":"https://doi.org/10.2139/SSRN.3028712","url":null,"abstract":"Spanish Abstract: Este trabajo pasa revista a la aplicacion de las prohibiciones de conductas anticompetitivas en Espana en los ultimos anos. Tras un breve recorrido por la aplicacion administrativa de las normas de defensa de la competencia desarrollada por la Comision Nacional de los Mercados y de la Competencia (CNMC) en sus casi tres anos de existencia, el trabajo se centra la revision judicial como el reto mas preocupante que, hoy en dia, afronta la defensa de la competencia en Espana. En efecto, varias decisiones erraticas de la Audiencia Nacional y del Tribunal Supremo, anulando con fundamentos varios las resoluciones sancionadoras de la extinta Comision Nacional de la Competencia (CNC), evidencian una preocupante incontinencia judicial que ha frustrado la labor desarrollada por la CNC en su sexenio de existencia, y complican aun mas la situacion a que se enfrenta la CNMC. Palabras Clave: Defensa de la Competencia, Aplicacion Publica, Aplicacion administrativa, Multas, Caducidad, Inspecciones. \u0000English Abstract: This article reviews public enforcement of the prohibitions of anti-competitive behavior in Spain in recent times. After a brief tour of administrative enforcement of competition rules by the National Commission Markets and Competition (CNMC) in its nearly three years of existence, this article focuses on judicial review as the most worrying challenge faced by competition law enforcement in Spain nowadays. Indeed, several erratic decisions of the High Court (Audiencia Nacional) and of the Supreme Court, annulling on different grounds many punitive resolutions of the defunct National Competition Commission (CNC), show a disturbing legal incontinence that has frustrated the efforts made by the CNC in its six years of existence, and further complicates the situation faced by the CNMC.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"272 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116048836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-06-01DOI: 10.17979/EJGE.2016.5.1.4313
Stéphane Ciriani, M. Lebourges
The European Union has experienced weak economic performance over the past 15 years, compared to the United States. In order to restore investment, innovation, and therefore growth, the European Commission seeks to raise the level of static competition in all markets. The Commission’s economic policy is largely determined by its competition policy. This policy is derived from its doctrine on competition law, which regards the exercise of market power as a source of inefficiency and advocates that its effects should be banned. By contrast, the United States competition authorities, under the influence of the Chicago School, consider that market power is a necessary incentive to invest and a fair return on investment. Recent findings in economic growth theory, which state that increased competition intensity may harm endogenous innovation, provide a theoretical basis to support the United States approach and call for a review of European doctrine.
{"title":"The Role of Market Power in Economic Growth: An Analysis of the Differences between EU and US Competition Policy Theory, Practice and Outcomes","authors":"Stéphane Ciriani, M. Lebourges","doi":"10.17979/EJGE.2016.5.1.4313","DOIUrl":"https://doi.org/10.17979/EJGE.2016.5.1.4313","url":null,"abstract":"The European Union has experienced weak economic performance over the past 15 years, compared to the United States. In order to restore investment, innovation, and therefore growth, the European Commission seeks to raise the level of static competition in all markets. The Commission’s economic policy is largely determined by its competition policy. This policy is derived from its doctrine on competition law, which regards the exercise of market power as a source of inefficiency and advocates that its effects should be banned. By contrast, the United States competition authorities, under the influence of the Chicago School, consider that market power is a necessary incentive to invest and a fair return on investment. Recent findings in economic growth theory, which state that increased competition intensity may harm endogenous innovation, provide a theoretical basis to support the United States approach and call for a review of European doctrine.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114425888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In November 2014, the vegetable seed industry saw the introduction of the International Licensing Platform Vegetable ("ILP"). The ILP's main objective is to enable worldwide access to biological material covered by patents for the purpose of vegetable breeding, whilst safeguarding incentives to invest in patentable inventions. As a result the ILP will boost innovation and competition in the industry.This contribution explains the reasons for founding the ILP and introduces its structure and inner workings, including the employment of "baseball arbitration" as a pragmatic mechanism for determining royalties in case bilateral negotiations fail. In addition, it explores some of the antitrust related challenges associated with assessing initiatives like the ILP and discusses open questions, limitations and success factors.Given its innovative set-up and structure, the ILP may potentially serve as a prototype for multiparty licensing structures in other industries where intellectual property rights are prevalent and access through conventional licensing negotiation is not satisfactory. However, where it concerns Europe, the suboptimal antitrust guidance currently in place runs the risk of chilling the willingness of private actors to introduce welfare enhancing collaborative licensing initiatives. Accordingly, the (procedural) antitrust landscape in the relevant area arguably warrants reconsideration.
{"title":"The 'International Licensing Platform – Vegetables': A Prototype of a Patent Clearing House in the Life Science Industry","authors":"M. Kock, F. ten Have","doi":"10.2139/ssrn.2773232","DOIUrl":"https://doi.org/10.2139/ssrn.2773232","url":null,"abstract":"In November 2014, the vegetable seed industry saw the introduction of the International Licensing Platform Vegetable (\"ILP\"). The ILP's main objective is to enable worldwide access to biological material covered by patents for the purpose of vegetable breeding, whilst safeguarding incentives to invest in patentable inventions. As a result the ILP will boost innovation and competition in the industry.This contribution explains the reasons for founding the ILP and introduces its structure and inner workings, including the employment of \"baseball arbitration\" as a pragmatic mechanism for determining royalties in case bilateral negotiations fail. In addition, it explores some of the antitrust related challenges associated with assessing initiatives like the ILP and discusses open questions, limitations and success factors.Given its innovative set-up and structure, the ILP may potentially serve as a prototype for multiparty licensing structures in other industries where intellectual property rights are prevalent and access through conventional licensing negotiation is not satisfactory. However, where it concerns Europe, the suboptimal antitrust guidance currently in place runs the risk of chilling the willingness of private actors to introduce welfare enhancing collaborative licensing initiatives. Accordingly, the (procedural) antitrust landscape in the relevant area arguably warrants reconsideration.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115062096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
An extensive literature exists regarding the patent disclosure and licensing commitments made by participants in standards-development organizations (SDOs), and how such commitments affect the assertion of standards-essential patents (SEPs). But this literature largely ignores the acquisition and assertion of SEPs by entities that do not participate in SDOs (Outsiders). SDO Outsiders, which are not themselves bound by the licensing and other requirements imposed by SDOs, have far greater freedom to employ a range of litigation tactics not available to SDO participants when they enforce SEPs against manufacturers of standardized products (Producers). This article describes the first study that has been conducted to collect and analyze data relating to SEP assertions by SDO Outsiders, a large number of which are so-called nonpracticing entities (NPEs). Over a fifteen-year period, the proportion of Outsider assertion of SEPs has been significant. More importantly, both SDO Outsiders and participants assert a combination of SEPs that are encumbered by SDO FRAND licensing commitments and that are unencumbered. Thus, while NPE Outsiders are responsible for numerous assertions of unencumbered SEPs, the greater threat of hold-up and rent extraction could arise from assertions of unencumbered SEPs by SDO Outsiders that are themselves Producers.
{"title":"When a Stranger Calls: Standards Outsiders and Unencumbered Patents","authors":"J. Contreras","doi":"10.2139/ssrn.2730439","DOIUrl":"https://doi.org/10.2139/ssrn.2730439","url":null,"abstract":"An extensive literature exists regarding the patent disclosure and licensing commitments made by participants in standards-development organizations (SDOs), and how such commitments affect the assertion of standards-essential patents (SEPs). But this literature largely ignores the acquisition and assertion of SEPs by entities that do not participate in SDOs (Outsiders). SDO Outsiders, which are not themselves bound by the licensing and other requirements imposed by SDOs, have far greater freedom to employ a range of litigation tactics not available to SDO participants when they enforce SEPs against manufacturers of standardized products (Producers). This article describes the first study that has been conducted to collect and analyze data relating to SEP assertions by SDO Outsiders, a large number of which are so-called nonpracticing entities (NPEs). Over a fifteen-year period, the proportion of Outsider assertion of SEPs has been significant. More importantly, both SDO Outsiders and participants assert a combination of SEPs that are encumbered by SDO FRAND licensing commitments and that are unencumbered. Thus, while NPE Outsiders are responsible for numerous assertions of unencumbered SEPs, the greater threat of hold-up and rent extraction could arise from assertions of unencumbered SEPs by SDO Outsiders that are themselves Producers.","PeriodicalId":306463,"journal":{"name":"LSN: Other Law & Society: Public Law - Antitrust (Topic)","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114367841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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