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Abstract:
The Federal Trade Commission's 2003 innovation report revealed an interesting fact: the pharmaceutical industry is largely satisfied with today's patent system while the electronics, software and Internet industries are not. This article suggests that a difference in governing law accounts for the difference in satisfaction. The federal Food and Drug Act requires pharmaceutical inventions to be proven safe and effective before they can be sold. It thus requires completion of the entire inventive process for pharmaceuticals. Our patent system, however, has no analogous requirement for the other fields. In them, applicants may stake a claim to rivals' later inventive effort after completing only the very first step - conceptualizing - of a lengthy inventive process. The result is patents on abstractions that hold up real inventors, as in Blackberry, eBay and countless other cases to come. Unfortunately, developments in biotechnology, including patenting gene segments, suggest that the biotech industry may be closing the gap in early-stage patenting.

This article suggests two ways to improve our patent system and reduce the difference in industry satisfaction. The first is to abolish the doctrine of constructive reduction to practice. A statutory amendment would require inventors, before receiving a patent, to invest reasonably in making, building, testing or at least simulating something concrete, in order both to demonstrate feasibility and to attract real seed capital. A second amendment would convert Section 103's nonobviousness criterion from an abstract test of cognitive difficulty to an economically meaningful test. The new test would encourage review of concrete economic factors such as investment of risk capital, real progress in bringing an invention to market, the assumption of technological risk, i.e., risk of total failure for nonmarket reasons, and a proven need for protection from free riders. Unlike current Section 103, the new test would consider how the invention was made and would permit hindsight. It would do so on the theory that patents protect not cognitive brilliance, but investment of risk capital in the entire process of invention, in which conceptualization is only a first step. The test would also recognize that investment, concrete progress, and risk are susceptible to proof in retrospect. The article outlines how, if adopted, these changes could help rationalize our patent system economically and eliminate the difference in satisfaction between pharmaceuticals and other fields of industry, whose own participants now see patents as impeding progress as often as promoting it.

patents, patent system, invention, inventive process, pharmaceutical, electronics, software, Internet, reduction to practice, obvious, hindsight, risk capital, technological risk, Blackberry

Abstract:
The Supreme Court astonished copyright and music-industry lawyers by deciding the Grokster file-sharing case unanimously in the industry's favor. The parties and some 61 distinguished amici (including the United States, two Senators and one State) had argued the case largely on the basis of modifying or clarifying the Court's 1984 decision in Sony. Yet the Supreme Court sidestepped that issue almost entirely, deciding the case as a matter of federal common law. It ruled unanimously that secondary liability can exist for inducing infringement of copyright and hinted strongly that the facts of the case would support an inducement claim on remand, regardless of the rule of Sony.

This article examines the causes and consequences of that unanimous decision. The principal causes were a mistake in civil procedure (cross motions for summary judgment based on facts, rather than claims or causes of action) and confusion between statutory interpretation and common-law analysis. The article analyzes how quasi-statutory prescriptions like the "rule" in Sony have led litigants to forget that secondary liability for copyright infringement (unlike patent infringement) is solely a matter of federal common law. If then explores how easy (in retrospect) it would have been to decide Grokster on a multi-dimensional common-law basis through factual analogy and distinction to and from precedent. It shows how much simpler and more accessible to the bar and laypeople common-law analysis is than decisions based on incomprehensible statutory amendments badly drafted by lobbyists for special interests and rubber-stamped by Congress, providing several examples from the last fifteen years. It concludes with a plea for industry and the bar to let the courts do their jobs and the (federal) common-law process work, as it did so well in Grokster.

copyright, secondary liability, vicarious liability, contributory infringement, inducing infringement, file sharing, peer-to-peer, P2P, Grokster, Napster, common law

Abstract:
This very brief working paper (8 pages, 20 footnotes) analyzes the form of the Supreme Court's decision in Hamdan v. Rumsfeld, not the result in that case. It notes the extreme verbosity of the Justices' six opinions, collectively comprising 60,800 words or eight times the length of our entire Constitution. It describes the Justices' focus on technical nuances of statutory construction and their virtual neglect of constitutional values and long-term historical context. The paper then analyzes the practical and political effect of this hyper-technical approach, which was apparently intended to fend off criticism of the Justices as judicial activists. It concludes that the Hamdan Court's approach to decision making, in what may have been the most important case in a generation: (1) reduced the Justices' prestige as educators-in-chief in matters of law and their authority as leaders of an independent branch of government, (2) continued a pernicious modern trend in the legal profession, making the law more and more obscure, inaccessible and incomprehensible to ordinary people, and therefore (3) likely weakened, not strengthened, the Court's practical authority and the rule of law generally.

Hamdan, Supreme Court, Justices, rule of law, separation of powers, checks and balances, Constitution, jurisprudence, Geneva Convention, law of war, Detainee Treatment Act, statutory interpretation

Abstract:
This very short paper (three pages) addresses a question raised by Chief Justice Roberts and later Justice Ginsburg in oral argument in MedImmune, Inc v. Genentech, Inc. The Justices asked whether a patentee, having granted a license that is still in force, could seek a declaratory judgment that the licensed patent is valid, in order to dispel legal uncertainty surrounding the patent and demand a higher royalty rate. The oral argument produced no clear answer, but there is an answer: based on two well-established legal doctrines, such a dispute would not be justifiable. The first well-established doctrine is Article III's requirement of resolvability - that the requested judgment resolve a dispute without further litigation. A declaratory judgment of patent validity would not have that effect because of the second well-established doctrine - a rule of black-letter contract law under which the validity of a contract depends only on the existence of consideration, not its value or amount. A patentee-licensor with a declaratory judgment of validity in her pocket would have to sue the licensee again, this time for a declaratory judgment that the contract was voidable for mutual mistake. That claim would be doubtful; and even if it succeeded the court would have no basis for redetermining the royalty rate but would have to remit the parties back to private bargaining. Thus the putative declaratory judgment of validity would not finally resolve the dispute. In contrast, a licensee with a declaratory judgment of invalidity would simply stop paying royalties, while continuing to manufacture products covered by the invalid patent's claims. The patentee would have no basis for suing, whether for patent infringement (because an invalid patent cannot be infringed) or for breach of contract (because of total failure of consideration). There is thus an asymmetry in the availability of declaratory judgments to patentee-licensors and licensees when a patent license is in force, but it follows from well-established principles of Article III and contract law.

MedImmune, Genentech, declaratory judgment, justiciability, case or controversy, patent, Article III, validity, reasonable apprehension

Abstract:
For much of the past decade, scholars and others have criticized the U.S. patent system for a variety of legal, economic, political and practical reasons. I have been one voice in that chorus of criticism, with four previous articles over five years. Unfortunately, pending bills for so-called patent “reform” would make little or no fundamental substantive change.

This short article digests what I see as the most important substantive criticism and proposes specific solutions in the form of the “guts” of a new patent statute. Its statutory proposal tracks the current statute’s organization and has numerous annotations explaining what is the same, what is changed and why, and what never-before-codified principles of judge-made law are explicitly codified. Among the proposed statute’s fundamental changes are: (1) explicit restrictions on patentable subject matter to avoid patents on bare abstractions; (2) adoption of a first-to-file system requiring worldwide novelty; (3) abolition of the doctrine of constructive reduction to practice (with exceptions for reasonable simulation of costly-to-build inventions); and (4) replacement of the troublesome criterion of “nonobviousness” with economic criteria that real investors actually use when deciding whether to invest in risky technology development.

An introduction to the proposed, annotated statutory language explains its basic principles. They include: (1) recognizing invention as an economic and commercial process, rather than a single, abstract act of conception, (2) reducing blockage of future innovation by discouraging patents on abstract, early-stage research, and (3) changing the substantive focus of patent law from abstract semantics to practical economic and commercial criteria amenable to adjudication.

patent reform, intellectual property, new patent statute, economics and patents, reduction to practice, nonobviousness, inventive risk, technological risk, codifying judge-made law, abstract crieria, economic criteria

Abstract:
This short paper analyzes deal making as a solution to the problem of blockage posed by early-stage patents in biotechnology. It begins with the notion---suggested by current research in the field---that solving important problems in human and animal health, such as curing or preventing cancer, will require a significant number of "pieces of the puzzle." Each of those pieces (for example, understanding the function and operation of a particular gene, gene segment, genetic "switch," protein expression mechanism, protein folding mechanism, etc.), might be eligible for a separate patent under current law if the subject-matter and utility requirements for patenting are broadly construed.

This paper reasons that deal making with or among owners of these separate patents must occur ex ante, i.e., before the particular number, identity and combination of pieces of the puzzle that provide a useful solution are known; otherwise, the effect of the multilateral monopolies created by patents on all the pieces makes it impossible to reach agreement or to properly apportion profits based on the pieces' relative importance to the solution. As the number of distinct pieces increases, however, the number of deals that must be made ex ante increases in accordance with combinatorial mathematics, that is, much faster than geometrically. For the numbers of pieces represented by the series (3, 4, 5, 6 . . . 50), for example, the numbers of required deals is (4, 11, 26, 57 . . . m), where m is a number greater than a million billion. If each distinct deal for fifty pieces took one hour to negotiate, making the necessary deals would consume more time than the age of the Universe since the Big Bang and 20,000 times more money than the U.S. national debt. This analysis suggests that deal making is not a realistic solution to the problem of blockage posed by early-stage patents in biotechnology.

patents, early-stage, blockage, blocking, bilateral monopoly, multilateral monopoly, combinatorial mathematics, deal making, patent policy

Abstract:
This short paper explains how two time-honored principles of tort law - proximate cause and culpability - might clarify and rationalize the law of secondary liability for intellectual-property (IP) infringement. It begins by analyzing how Judge Cardozo’s classic opinion in Palsgraf used these principles to chart an intermediate course between intentional and strict liability. It then seeks to apply the same approach to IP cases, in which direct liability is strict, but secondary liability involves culpability. Using the recent cases of Tiffany v. eBay and Perfect 10 v. VISA as examples, it analyzes how these principles might apply, respectively, to an on-line auctioneer’s secondary liability for third parties’ sales of counterfeits and a credit-card service’s secondary liability for Internet sales of infringing images. In the process, it suggests that reverting to tort-law basics could simplify and shorten both analyses and judicial opinions in IP cases and perhaps produce more sensible results, in part by introducing economic principles like the least-cost avoider. It concludes with some observations about the recent progress in federal-common-law analysis of other IP issues and its potential to revivify an increasingly rigid and formalistic approach to fields of law outside IP.

copyright, secondary liability, vicarious liability, contributory infringement, inducement, intellectual property, IP, tort, Palsgraf, proximate cause, culability

Abstract:
So far, most copyright litigation in cyberspace has involved secondary liability (i.e., vicarious liability or contributory infringement, including the inducement liability newly announced in Grokster). Yet direct liability is far from dead. The well-established rule of MAI Systems Corp. makes any transient copy in RAM an infringing copy unless authorized, and such "copies" appear in innumerable ways and forms in the course of the Web's normal operation. By itself, transmitting digital files is unlikely to violate the exclusive distribution right, but their use may infringe the copyright owner's other exclusive rights under Section 106. The rights' abstract expression promises perpetual copyright litigation as the Web's technology and business models evolve.

Emerging theories of direct liability offer little escape from this economically inefficient future. The "server" (rather than "incorporation") test may rationalize the reproduction, public-display and public-performance rights as applied to linking and framing. Yet it only raises further questions about the derivative-work right. The "volitional action" test has scant precedent to support it. Even if quickly accepted, these emerging theories create uncertainty for such vital uses as search-engine excerpting, image thumbnails, and multimedia applications yet to be devised.

An "implied license" or "social contract" approach offers a more sensible and efficient reconciliation of copyright with the Web's evolution. If a use (1) has become widespread, (2) is widely known or publicized, and (3) has an effective technology to prevent it by "opting out," then the use is non-infringing on the theory that the copyright owner impliedly authorized it by not opting out. A district court recently applied this approach in Field v. Google, Inc., rejecting challenges to Google's well-established search technology. If incorporated in new legislation, this approach might rapidly rationalize copyright for the Web, allowing engineers and business people, not copyright lawyers, to control the Web's evolution, while preserving copyright owners' financial incentives and creative control.

copyright, infringment, direct liability, exclusive rights, Web, cyberspace, perpetual litigation, Mai, server test, incorporation test, implied license, social contract, volitional infringement

Abstract:
Adopted in 1998 as part of the Digital Millennium Copyright Act, 17 U.S.C. Section 1201 prohibits circumventing technological "locks" on copyrighted works and providing others with means to do so. So far four federal courts of appeals have addressed it. The first case involved the section's central purpose: protecting technologically "locked" works from digital piracy. That case was simple enough to resolve decisively at the trial-court level; only constitutional challenges were appealed. The other three appellate decisions addressed the statute's unintended consequences, namely, its application to producers' attempts to control aftermarkets for printer toner cartridges, garage-door-opener transmitters, and interactive on-line services for PC-based video games. Three-quarters of the appellate decisions have thus addressed the statute's unintended consequences. Moreover, the decisions have produced widely differing theories of what Section 1201 means and how it operates.

Apart from its legendary opacity, Section 1201 has three main flaws: overreaching by copyright owners, technology dependence, and consequent failure to coordinate sensibly with copyright. Subsection (a) addresses technological access controls. It is mindlessly absolute and intended to be so, but nothing in the two WIPO treaties that were an ostensible impetus for adopting Section 1201 requires it to be so. Subsection (b), which addresses technological use controls, has explicit language that permits sensible coordination with copyright, including fair use. Applying the two subsections requires some understanding of computer technologies, and the resulting focus on technological detail has distracted courts' attention from important business, social, and economic consequences. Only one lone district court appears to have parsed the two subsections correctly; all other courts interpreting Section 1201 have virtually ignored subsection (b), its distinction from subsection (a), and its textual basis for coordination with copyright. Courts might help restore balance by construing subsection (a) narrowly and subsection (b) broadly, or by using the developing federal common law of secondary liability for copyright infringement to make an "end run" around Section 1201 entirely. Repeal, however, might be a quicker and cleaner solution, for the law of copyright and secondary liability is fully capable of handling the legitimate issues that Section 1201 purports to address with far less cognitive dissonance vis-a-vis copyright.

copyright, secondary liability, digital millennium, fair use, Section 1201, circumvention, anticircumvention, trafficking, technological measure, WIPO Treaty, access control, use control, failed statute

Abstract:
For the first time ever, the Supreme Court's seminal decision in Grokster permits the theory of secondary liability in copyright law to be rationalized. That case confirmed two important principles: (1) that secondary liability in copyright is a matter of federal common law; and (2) that, unlike primary liability, secondary liability depends upon the defendant's culpability or state of mind.

The Grokster Court itself required a purposeful state of mind for the new "inducement" claim that it announced. Earlier decisions, including Sony, already had listed actual or constructive knowledge of others' infringement as an element of contributory infringement generally.

Vicarious liability depends upon two elements: (1) the right and ability to control others' infringement and (2) a direct financial benefit from it. While these elements on their faces do not include culpability, together they permit a presumption or inference of culpability. If a business can control infringing activity, receives remuneration from it, and does nothing to stop it, knowledge of the infringement can properly be inferred or presumed. With this observation, all existing theories of secondary liability can be viewed as based upon various levels of culpability (purpose, actual or constructive knowledge, or presumed or inferred culpability). In that respect all can be distinguished from primary liability for copyright infringement, which has always been a strict-liability offense, independent of the defendant's culpability or state of mind.

copyright, secondary liablity, contributory infringement, vicarious liability, inducement, grokster, sony, culpability, state of mind

Abstract:
The Hatch-Waxman Act was intended to encourage makers of generic drugs to seek early entry into drug markets controlled by patents, in part by challenging the patents before they expire. Some patentees have settled these challenges by agreeing to pay the challengers tens or hundreds of millions of dollars to drop their challenges and therefore early market entry. Some settlements of this kind also leverage the Hatch-Waxman Act's exclusivity period to exclude entry or discourage patent challenges from other would-be generic entrants not parties to the settlement. (The Act provides a 180-day period of statutory market exclusivity as an incentive to the first generic challenger, and certain features of the Act can extend that period, as a practical matter, to thirty months.)

This article provides economic and antitrust analysis of these "exit" or "no entry" agreements. In the usual case in which the would-be generic entrant has no sunk investment in entry (apart from the litigation), these large payments are essentially payments not to challenge the patent and therefore payments not to complete. They are self-evidently anticompetitive and contrary to the policy of both patent law (under Lear, Inc. v. Adkins) and the Act.

Settlements that leverage the first generic challenger's statutory exclusivity period to exclude other generic entrants appear to have no possible competitive justification and therefore to be illegal per se. Settlements that do not leverage the Hatch-Waxman Act exclusivity period should be governed by the rule of reason. Yet in many cases a "quick look" should condemn them because they are facially anticompetitive and no efficiencies or procompetitive benefits are cited to justify them. Although a few courts have found them justified by a general policy favoring dispute settlement, that is not an antitrust policy. It is well established that justification in antitrust law requires benefits specifically to competition. In the absence of a specific procompetitive benefit - for example, early or more vigorous entry by the would-be generic entrant receiving the large payments - these "exit" agreements should fail scrutiny under the rule of reason.

Exit agreement, no-entry agreement, pharmaceutical, drug, patent, generic, patent challenge, Hatch-Waxman Act, antitrust, illegal per se, rule of reason

Abstract:
For more than half a century, courts have viewed certain uses of intellectual property (IP) as misuse, rendering the IP unenforceable until the misuse is purged. The doctrine began with patents, but courts have recently extended it to copyrights. In most cases, it reflects concern over contractual restraints on competition. Yet if misuse doctrine aimed at competition is not consistent with antitrust principles, it can act at cross purposes to antitrust law. Accordingly, both Congress and the courts have worked to reconcile misuse with antitrust.

This paper reviews and analyzes that reconciliation and suggests where further work is needed. It divides misuse doctrine into four general categories: (1) attempts to extend the term of IP protection, (2) tying, (3) mandatory package licensing, and (4) attempts to circumvent intrinsic limitations of copyright. The first category is based largely on the Supreme Court's decision in Brulotte, which has been heavily criticized, makes little economic sense, and appears inconsistent with later decisions. Although still good law, this part of misuse doctrine therefore appears vulnerable to legal challenge. The second category of misuse doctrine is the best justified, because it protects the rights of third parties (those foreclosed from the tied market), who might not be aware of the source of their market foreclosure and who otherwise might not be able to compete. However, in the field of copyright it still requires judicial or legislative reconciliation with antitrust principles, of the sort that Congress provided for patents in 1988. The third category also requires reconciliation with antitrust analysis, which the Federal Circuit began to provide for patents in a 2005 decision. The fourth category of misuse doctrine is perhaps the most inconsistent with antitrust principles; it should be eliminated in favor of more precise analysis, under which offending provisions of copyright license agreements (rather than entire copyrights) might be declared unenforceable as in conflict with federal copyright law (and therefore pre-empted) or as invalid covenants not to compete.

Misuse, antitrust, competition law, patent, copyright, reconciliation, tying, package licensing, contractual restraint, pre-emption

Abstract:
Congress adopted Section 1201 in 1998, as part of the Digital Millennium Copyright Act, in order to protect copyrighted works from digital piracy and unauthorized use. The section seeks to achieve that goal by outlawing circumventing technological measures (such as encryption and password protection) that protect copyrighted works and trafficking in means for circumvention.

Although its purpose is simple, Section 1201 has three separate rules in two separate subsections, and its text is notoriously impenetrable. Its complexity has allowed litigants plausibly to apply it to control aftermarket commerce in printer toner cartridges and transmitters for garage door openers.

This piece explains how Section 1201 is supposed to work, and why only a fraction of courts so far has parsed it properly. The analysis begins with a paradox of sorts: although Section 1201 was designed to protect copyrighted works, it is not part of copyright law. Beginning at that essential point, this piece discusses why Section 1201 has been so problematic, emphasizing the differences between its two key subsections. The piece concludes that copyright defenses like fair use have no application under subsection (a) but (due to differences in explicit text) may have application under subsection (b). It therefore suggests the importance of choosing the right subsection in each case and provides a simple, practical test for doing so. That test may help avoid turning trials under Section 1201 into graduate seminars in computer engineering. Finally, the piece explains why the printer toner case was correctly decided by the Sixth Circuit on appeal, while the Federal Circuit's decision in the garage-door-opener case, although correct in result, contains dangerously misleading extended dictum.

copyright, digital, circumvention, trafficking, fair use, encryption, aftermarket, 1201

Abstract:
Almost from its inception, the Federal Circuit adopted a two-part test for justiciability of claims for declaratory judgments in patent cases. A declaratory plaintiff who would be the defendant in a patent infringement suit must: (1) have a reasonable apprehension of suit by the patentee, and (2) be engaging in or preparing for infringing activity. This piece examines the evident tension between the first prong of this test and the purpose of the Declaratory Judgment Act: allowing injured parties to force adjudication of uncertain rights when the holder of the alleged rights refuses to sue to enforce them.

The piece begins by examining the recent case of Teva Pharmaceuticals USA, Inc. v. Pfizer Inc. There a three-judge panel of the Federal Circuit ruled, over a dissent by Chief Judge Meyer, that the Constitution requires this two-part test. After examining the case in detail, this piece concludes that the result in it - no jurisdiction - was unwarranted on the facts, inconsistent with the seminal Lear decision, and economically harmful.

This piece then examines the asserted basis for the decision: that the Constitution's case or controversy requirement precludes jurisdiction over claims for declaratory judgments against quiescent patentees. It examines the origins of the Federal Circuit's reasonable apprehension of suit prong and concludes that the test is an ipse dixit that nothing in the Constitution or precedent requires. The piece also reasons that the Federal Circuit's apparent motivation for the test - preserving the patentee's litigation prerogatives and a sense of fairness in litigation - has little or nothing to do with the Constitution's case or controversy requirement. The piece concludes that the reasonable apprehension of suit test is not required by the Constitution and is inconsistent with the letter and spirit of the Declaratory Judgment Act.

declaratory judgment, justiciability, case or controversy, patent, drug, pharmaceutical, Federal Circuit, reasonable apprehension

Abstract:
This article uses the FTC's October 2003 white paper on the U.S. patent system as the point of departure for a plenary critique of the system from an economic perspective. Taking the fresh viewpoint of "Alice in Wonderland" - an Englishwoman familiar with the Statute of Monopolies and comfortable with quantitative science and mathematical logic - it looks at the system's two most fundamental economic questions: (1) what things are patentable, and (2) what a patent protects. In each case it demonstrates, by detailed reference to current U.S. patent law, how far the U.S. system is from providing clear, let alone economically rational, answers to those questions. It then proposes more fruitful economic approaches. On the subject-matter question, it proposes a test based upon technological risk (as distinguished from market risk), defined as a risk of total failure for reasons other than market acceptance. On the question of breadth, it proposes abandoning the vain quest for an effective formalism and instead judging the breadth and infringement of patents in a single proceeding with expert witnesses (perhaps including neutral, court-appointed experts), based on substantial scientific, technological and economic effects. The article ends by listing the new innovative industries that have arisen since 1952, when the present patent statute was enacted, and noting how little that statute differs in substance from the patent exception to the Statute of Monopolies enacted nearly four centuries ago. It concludes with an analysis of the pros and cons of the FTC White Paper from an economic perspective and a plea for plenary revision of U.S. patent law.

patents, patent system, invention, innovation, economics, law and economics, monopoly, antitrust, competition, competition policy, free markets, FTC, subject matter, nonobvious, claims, scope of patent, patent law revision, Statute of Monopolies

Abstract:
With the recent rejection of the last holdout state's objections to the federal settlement in Microsoft IV, the last shoe appears to have dropped in this mammoth litigation. After all the dust had settled, Microsoft had essentially written its own remedy, albeit under considerable pressure. This piece reviews the lessons, both legal and strategic, that can be learned from the case.

The piece begins with a discussion of the two main antitrust claims against Microsoft: (1) monopolization by extending its operating-system monopoly, and (2) tying its Internet browser to its monopoly O/S platform. The piece explores why the D.C. Circuit affirmed liability on the first and reversed a finding of liability on the second, as well as on a related attempt claim. It then provides a detailed critique of the D.C. Circuit's analysis and the government's handling of the case.

The piece criticizes the D.C. Circuit's reversal of liability for attempting to monopolize and for tying on two grounds. First, it finds little precedent in law, and little reason in economics, for the court's ipse dixit that attempt and tying claims invariably require proof of barriers to entry in the defined market - far less structural barriers of the kind the court apparently had in mind. Second, the piece finds the court guilty of something approaching willful blindness in failing to notice that virtually all the conduct the court itself discussed under the heading of monopolization of the O/S market in fact created substantial barriers to entry into the browser market. Finally, the piece reviews the court's extraordinary dictum to the effect that the computer software industry is somehow different for antitrust purposes and finds it inconsistent with voluminous Supreme Court precedent and economically irrational.

The piece then examines the government's litigation strategy of putting virtually all its eggs in one basket: the theory that Microsoft extended its O/S monopoly by removing the threat to that monopoly posed by browsers as middleware. It shows how reliance on that convoluted theory virtually precluded any substantial remedy by making it impossible to demonstrate a causal relationship between remedy and wrong. Finally, the piece discusses the government's failure to prove a relevant market for the tying claim, thereby not only abandoning a claim in which causation should have been easier to prove, but also inviting a disastrous holding that encourages monopolists of dominant software platforms to gobble up add-ons, too. The piece concludes with a suggestion for litigation strategy keeping the remedy in mind and a nod to the European Union for picking up the ball dropped by U.S. antitrust authorities.

Microsoft, antitrust, monopoly, monopolization, attempt to monopolize, tying, operating system, browser, Internet, computer software, licensing, software platform, remedy, divestiture, source code disclosure, two-firm market