Predatory Innovation: The Definite Need for Legal Recognition

21 SMU Sci. & Tech. L. Rev. 19

56 Pages Posted: 13 Jul 2017 Last revised: 21 Oct 2018

See all articles by Thibault Schrepel

Thibault Schrepel

Vrije Universiteit Amsterdam; Stanford University's Codex Center; University Paris 1 Panthéon-Sorbonne; Institut d'Etudes Politiques de Paris (Sciences Po)

Date Written: July 1, 2017


The antitrust community is increasingly interested in digital markets. Most of the existing body of research suggests that such markets require a reassessment of antitrust law key concepts. There is little-published literature, however, dealing with the new types of anti-competitive strategies implemented in these markets.

This article seeks to substantiate the value of the notion of predatory innovation — which the author defines as the alteration of one or more technical elements of a product to limit or eliminate competition. It describes all practices that, under the guise of real innovations, are anticompetitive strategies aimed at eliminating competition without benefiting consumers.

The jurisprudence has not yet generalized the etiquette of predatory innovation and this absence of a dedicated legal category leads judges and authorities to create numerous type I and II errors. For that reason, the development of a dedicated legal regime is a necessity which must be promptly answered.

This article proposes to portray all practices that can and should be condemned as predatory innovation. In substance, it questions what predatory innovation is and exposes the multiplicity of these practices as well as their frequency.

Keywords: antitrust, innovation, predatory innovation, high-tech, platforms, algorithms, open system, closed system

JEL Classification: K21

Suggested Citation

Schrepel, Thibault, Predatory Innovation: The Definite Need for Legal Recognition (July 1, 2017). 21 SMU Sci. & Tech. L. Rev. 19, Available at SSRN:

Thibault Schrepel (Contact Author)

Vrije Universiteit Amsterdam ( email )

De Boelelaan 1105
1081 HV Amsterdam

Stanford University's Codex Center ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

University Paris 1 Panthéon-Sorbonne ( email )


Institut d'Etudes Politiques de Paris (Sciences Po) ( email )

27 rue Saint-Guillaume
Paris Cedex 07, 75337

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