Table of Contents

Product Hopping 2.0: Getting the FDA to Yank Your Original License Beats Stacking Patents

Lars Noah, University of Florida - Fredric G. Levin College of Law

Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly.

Irina D. Manta, Hofstra University - Maurice A. Deane School of Law
David S. Olson, Boston College Law School

Muzzling Antitrust: Information Products, Innovation and Free Speech

Hillary Greene, University of Connecticut School of Law

Competition and Buyer Power Through an Ordoliberal Lens

Ignacio Herrera Anchustegui, University of Bergen, Faculty of Law, Students, University of Bergen - Faculty of Law

Assembled Products: The Key to More Effective Competition and Antitrust Oversight in Health Care

William M. Sage, University of Texas at Austin School of Law


ANTITRUST: ANTITRUST LAW & POLICY eJOURNAL

"Product Hopping 2.0: Getting the FDA to Yank Your Original License Beats Stacking Patents" Free Download
Marquette Intellectual Property Law Review, Vol. 19, No. 2, 2015

LARS NOAH, University of Florida - Fredric G. Levin College of Law
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Introduced in 1995, extended-release oxycodone (OxyContin) became a blockbuster drug for its manufacturer Purdue Pharma. Fifteen years later, the company secured FDA approval of an abuse-resistant formulation of this product (OxyContin OP). In 2013, just as its contested patents on OxyContin expired, Purdue managed to persuade the agency to withdraw its license for the original formulation, which prevented the introduction of generic copies of the older version that otherwise would have undercut sales of OxyContin OP. Pharmaceutical manufacturers routinely introduce new and improved versions of successful drugs as their patents on older products wind down and generic rivals prepare to enter the market. The recent experience with the reformulation of OxyContin represents an extreme variant of such arguably anticompetitive behavior. By virtue of the FDA’s withdrawal of the license for OxyContin, patients who derive no benefit from the abuse-resistant features will not enjoy the option of using cheaper generic versions of the older product, instead having to pay a premium for the new formulation over the next decade or so. The agency’s decision may well make sense in this context, but, to the extent that it signals a more general willingness to act favorably upon withdrawal requests by license holders whenever they introduce modified versions of their products, the FDA may have given brand-name drug manufacturers a powerful new mechanism for further delaying generic entry that entirely escapes antitrust scrutiny.

"Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly." Free Download

IRINA D. MANTA, Hofstra University - Maurice A. Deane School of Law
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DAVID S. OLSON, Boston College Law School
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This Article argues that the evolution of software — and the looming age of the “Internet of Things? — will allow manufacturers of software and of consumer goods to make use of consumer monitoring technologies and restrictive software licenses to more perfectly price discriminate. A number of commentators are urging changes in the law to prevent monitoring and restrictive software licenses. This Article takes a novel and contrarian view by explaining that the current law surrounding software licensing, which will facilitate more perfect price discrimination as technology evolves, is mostly beneficial. Because the marginal cost of software distribution approaches zero, facilitating more perfect price discrimination is particularly valuable to society because it facilitates much more widespread distribution of software — especially to poorer consumers. Some commentators worry that as more and more consumer goods contain software, manufacturers will use restrictive software licenses in an attempt to control consumers’ abilities to use and resell consumer goods. This Article explains that this generally will not happen because it would be against the manufacturers’ financial interests. We show that in some cases, manufacturers will indeed restrict use of a product to facilitate their ability to engage in price discrimination. The Article argues that such price discrimination will likely be welfare enhancing and will definitely improve cross-subsidization from rich to poor so that poor consumers can get more products for lower prices. The Article also demonstrates that the traditional policy reasons to disallow restraints on personal property do not apply to software-enabled devices. We conclude that rather than discouraging the use of restrictive software licenses, the law should adapt to better facilitate such licenses and the more perfect price discrimination that goes with them.

"Muzzling Antitrust: Information Products, Innovation and Free Speech" Free Download
Boston University Law Review, Vol. 95, No. 1, 2015

HILLARY GREENE, University of Connecticut School of Law
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How well does the American legal system balance the diverse values society espouses? Courts must often navigate values that are not consistent, commensurate, or subject to ordinal ranking. This article examines the confluence of incommensurate values within the important context of antitrust challenges to information product redesigns (e.g., Google, Nielsen).

The information economy has given rise to the emergence of powerful firms in the business of information products. Some of these firms have had product redesigns challenged as anticompetitive. This article examines two defenses to these challenges. First, the products constitute protected speech and should be immunized entirely from antitrust scrutiny. Second, the product changes embody procompetitive innovations and, therefore, are not anticompetitive.

When addressing antitrust challenges to search engine modifications, for example, the courts must account for free speech — a value exogenous to antitrust — as well as competition and innovation, two goals often considered in tandem within an antitrust framework focused on consumer welfare. Navigating speech and consumer welfare considerations presents a classic incommensurability problem. Moreover, even competition and innovation have proven to be largely incommensurate in practice, notwithstanding their shared consumer welfare orientation.

Despite antitrust’s ostensible facility with more nuanced tradeoffs, the courts have been largely unwilling or unable to transcend binary “all-or-nothing? outcomes when either speech or innovation-based defenses are implicated. When those product redesigns are decidedly incremental and arguably anticompetitive, the application of all-or-nothing legal standards provides inadequate protections for the underlying First Amendment rights and competition policy values at stake. This article explains why legal middle grounds, while potentially difficult, can and must be established to deal with speech and innovation.

"Competition and Buyer Power Through an Ordoliberal Lens" Free Download

IGNACIO HERRERA ANCHUSTEGUI, University of Bergen, Faculty of Law, Students, University of Bergen - Faculty of Law
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Ordoliberalism is a German school of economic thought that advocates regulating the free market economic based on a set of state imposed rules guaranteed by the economic constitution to impose a competitive order in society. It proposes an alternative method to pure laissez-faire and state planned economy for the better regulation of the market economy by having as goals the protection of the competitive process and individual freedom. In this article I submit that ordoliberalism, an indigenous European competition policy, is an adequate economic and analytical tool to base the practice and decision making of competition law and, in particular, for the regulation of buyer power. My aim is twofold: contribute to the discussion on what ordoliberalism is in general and in particular concerning competition policy, and offer a new perspective on an ordoliberal-oriented competition policy for the treatment of buyer power.

"Assembled Products: The Key to More Effective Competition and Antitrust Oversight in Health Care" Free Download
Cornell Law Review, Forthcoming

WILLIAM M. SAGE, University of Texas at Austin School of Law
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This Article argues that recent calls for antitrust enforcement to protect health insurers from hospital and physician consolidation are incomplete. The principal obstacle to effective competition in health care is not that one or the other party has too much bargaining power, but that they have been buying and selling the wrong things. Vigorous antitrust enforcement will benefit health care consumers only if it accounts for the competitive distortions caused by the sector’s long history of government regulation. Because of regulation, what pass for products in health care are typically small process steps and isolated components that can be assigned a billing code, even if they do little to help patients. Instead of further entrenching weakly competitive parties engaged in artificial commerce, antitrust enforcers and regulators should work together to promote the sale of fully assembled products and services that can be warranted to consumers for performance and safety. As better products emerge through innovation and market entry, competition may finally succeed at lowering medical costs, increasing access to treatment, and improving quality of care.

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ANTITRUST & REGULATED INDUSTRIES EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Antitrust: Antitrust Law & Policy eJournal

JAMES R. ATWOOD
Covington & Burling

JONATHAN B. BAKER
Professor of Law, American University - Washington College of Law

MAXWELL M. BLECHER
Attorney at Law, Blecher and Collins

DENNIS W. CARLTON
Professor, University of Chicago - Booth School of Business, National Bureau of Economic Research (NBER)

FRANK H. EASTERBROOK
Senior Lecturer, University of Chicago Law School

NICHOLAS ECONOMIDES
Executive Director, Networks, Electronic Commerce, and Telecommunications Institute, Professor of Economics, New York University - Leonard N. Stern School of Business - Department of Economics

EINER R. ELHAUGE
Professor of Law, Harvard Law School

ELEANOR M. FOX
Professor of Law, New York University School of Law

HERBERT J. HOVENKAMP
Professor, University of Iowa - College of Law

LOUIS KAPLOW
Professor of Law, Harvard Law School, National Bureau of Economic Research (NBER)

DANIEL L. RUBINFELD
Professor, University of California at Berkeley - School of Law, National Bureau of Economic Research (NBER), NYU Law School

CARL SHAPIRO
University of California, Berkeley - Haas School of Business