CHRISTINA BOHANNAN, University of Iowa - College of Law
Email: christina-bohannan@uiowa.edu

It is both curious and deeply troubling that, in an age of intellectual property expansionism, the doctrine most explicitly concerned with limiting IP overreaching has no defensible basis in IP policy. “Misuse� relates to the IP holder’s use of licenses and other arrangements to obtain rights “beyond the scope� of a statutory IP grant, but the doctrine has not established adequate principles for identifying the practices that should be condemned.

The misuse doctrine evolved in patent law and concerned the tying of patented and unpatented goods. Courts held that such tying violated federal patent policy by expanding the statutory monopoly to include a second product not covered by the patent claims. Since then, misuse has expanded to cover many other practices and also into copyright law, reaching to package licensing of related patented or copyrighted goods, restraints on a licensee’s ability to produce competing technologies, and requiring royalty payments beyond the expiration of the patent or copyright term. Much of the case law has embraced an antitrust standard for misuse, which is fairly coherent but is not faithful to core IP values of promoting innovation and protecting access to the public domain. These defects in misuse doctrine are particularly problematic given the nature and severity of the penalty. A finding of misuse renders the IP right unenforceable until the misuse is “purged.� One must therefore question whether the benefits of remedying misuse outweigh the social costs of foregone IP enforcement.

This article argues that misuse doctrine has been shooting at the wrong targets. Many cases applying an antitrust standard for misuse emphasize market power in the primary (typically, patented) product as the key component. These decisions incorporate exaggerated concerns about “leverage� and avoid the issue that should be their focus, which is foreclosure of competing technologies or the public domain. Other decisions emphasize attempts to expand IP rights beyond their statutory scope; however, every license goes beyond literal IP scope, and the decisions provide no calculus for distinguishing permissible from impermissible expansion. This paper argues that if misuse is really to be used as an instrument of IP policy and is to be confined to those practices that are serious enough to warrant its severe remedy, misuse should be focused on foreclosure. That is, misuse should be found where the IP holder engages in a practice that unreasonably forecloses competition, future innovation or access to the public domain.

NICOLAS PETIT, University of Liege
Email: nicolas.petit@ulg.ac.be

The purpose of the present article is to offer thoughts on the “Guidance Communication on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty� and, in particular, to review the requirements which the Commission must meet in Article 82 EC cases when it purports to apply the Communication’s economics-oriented, effects-based approach. In addition, this article seeks to assess whether the Communication’s effects-based approach really entails a paradigmatic shift towards increased competition economics, comparable to the (r)evolution that has taken place in other areas of EC antitrust enforcement since the early 2000. It comes to the conclusion that whilst the Communication marks a welcome economic sophistication of the Commission’s Article 82 EC enforcement policy, it nonetheless often fails to go beneath the surface of modern antitrust economics, and thus provide only limited guidance to firms and their counsels.

OLES ANDRIYCHUK, European University Institute, University of East Anglia - Centre for Competition Policy
Email: olesevi@hotmail.com

Competition policy and law play a pivotal role in the development of the European market process. This role, however, becomes subject to revision in the time of recession. Historically each period of economic downturn is accompanied by severe critique and substantial limitation of the principles of free market with undistorted competition. Crisis cartels and similar otherwise restrictive practices often become not only tolerated but even encouraged by the regulators. This compromise is seen as an inevitable trade-off between competition and other legitimate societal goals, such as industrial growth, social stability, total welfare and sometimes even national security. On the other hand, each regulatory ‘turbulence,’ which is caused by the revision of the role of competition within the markets, can be also seen as a fruitful time for introducing new elements to the competition policy itself and testing new theories of competition. Dialectical antitrust is one of these theories. This article explores the role of competition authorities in the period of economic crisis applying methodological apparatus of the theory of dialectical antitrust.

GIANLUCA FAELLA, Cleary Gottlieb Steen & Hamilton, Luiss Guido Carli University
Email: gfaella@luiss.it
ROBERTO PARDOLESI, Libera Università degli Studi Sociali (LUISS) Guido Carli
Email: rpardole@luiss.it

Price squeeze abuses lie at the crossroad between different forms of potentially anticompetitive conduct, as well as between antitrust law and regulation. The main question that has arisen in the academic debate and actual practice is whether a combination of a lawful wholesale price and a non-predatory retail price can be characterized as exclusionary conduct based on the analysis of the margin between the two prices. In the paper, we argue that there is no need for a separate price squeeze theory under antitrust law. Assuming that the costs of supplying an input to rivals and to internal downstream divisions do not differ, a price squeeze capable of excluding equally efficient competitors may arise only from upstream discrimination (discriminatory price squeeze) or downstream predation (predatory price squeeze). However, when the downstream division of the dominant firm is not a separate legal entity, distinguishing discriminatory and predatory price squeezes may turn out to be impossible, as internal transfer charges are absent in many concrete settings of vertical integration. In these cases, an analytical framework for the assessment of price squeeze cases can be useful, provided that it is intended as an operational tool aimed at detecting anticompetitive conduct of a discriminatory or predatory nature, which is not directly observable. Instead of mimicking regulatory tools and criteria, the analytical framework for the assessment of price squeeze cases should be construed in accordance with basic principles of competition law and traditional doctrines of antitrust liability. This approach strongly supports the application of principles on refusal to deal to price squeeze cases and the use of the equally efficient competitor test to ascertain whether a given pricing policy is anticompetitive.

XU QIU, affiliation not provided to SSRN
Email: frankxuqiu@gmail.com

The case between Dexian and Sony is once called “the first Antimonopoly case� in China, since the case happened right before China Antimonopoly Law came into effect and brought certain important legal questions in dispute when the case was going on. Some of those questions now can be solved, at least to some extent, under China Antimonopoly Law, but some remain unsolved. Among those questions, the question of dominant market position and the question of tying arrangement weigh the most. There is also certain technical question remained unsolved in the case. In this paper some of the important legal questions are discussed, and U.S. Antitrust law and Chinese Antitrust law are compared to some extent. Knowing and understanding the case between Dexian and Sony will be useful to those who are interested in understanding the current Chinese Antitrust law and some of the differences between U.S. Antitrust law and Chinese Antitrust law, and will be meaningful to Antitrust legal practice in both U.S. and China.

ROBERT H. LANDE, University of Baltimore - School of Law
Email: rothland@erols.com

The mission of the antitrust laws need to be clarified, and this article asserts that the best way to do this is to interpret and enforce these laws in terms of consumer choice. This reformulation is necessary due to uncertainty and instability that exists in the field. This article will 1. define the consumer choice approach to antitrust or competition law and show how it differs from other approaches; 2. show that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. show that the antitrust case law embodies a concern for optimal levels of consumer choice; 4. present evidence of the new paradigm: United States v. Microsoft; 5. argue that non-price competition should become a higher priority for antitrust enforcement; 5. Discuss consumer choice and the media.