Product Hopping and the Limits of Antitrust: The Danger of Micromanaging Innovation

Competition Policy International Antitrust Bulletin, December 2015 (1)

5 Pages Posted: 16 Dec 2015

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Koren Wong-Ervin

Director of IP & Competition Policy at Qualcomm Incorporated and Senior Expert at China's University of International Business & Economics (formerly at the U.S. Federal Trade Commission)

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: December 14, 2015

Abstract

In this article on product hopping, we explain that, considering the potential for significant consumer benefits from even small changes in product design, coupled with antitrust agencies and courts being ill-equipped to displace the judgments of consumers (and, with regard to drugs, their doctors) about the value of a new product design, product hopping should be per se lawful absent objective evidence that Product B is a sham innovation with zero or negative consumer welfare effects.

Keywords: product hopping, product switching, antitrust, sham innovation

JEL Classification: K21, L4, L5, L40, L41, L50

Suggested Citation

Ginsburg, Douglas H. and Wong-Ervin, Koren and Wright, Joshua D., Product Hopping and the Limits of Antitrust: The Danger of Micromanaging Innovation (December 14, 2015). Competition Policy International Antitrust Bulletin, December 2015 (1). Available at SSRN: https://ssrn.com/abstract=2703597

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Koren Wong-Ervin (Contact Author)

Director of IP & Competition Policy at Qualcomm Incorporated and Senior Expert at China's University of International Business & Economics (formerly at the U.S. Federal Trade Commission) ( email )

1730 Pennsylvania Ave N.W.
Suite 850
Washington DC, DC 20006-1850
United States

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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