Four Innovation Myths
Concurrences (Albert A. Foer Liber Amicorum), Forthcoming
25 Pages Posted: 22 Oct 2020
Date Written: October 14, 2020
Bert Foer is one of the most influential figures in the past quarter century of antitrust. His founding and development of the American Antitrust Institute (AAI) filled a significant hole in late 20th-century antitrust and served as a useful counterweight to the Chicago School. In addition to his crucial work with AAI, Bert explored long-standing antitrust issues with a fresh perspective. In particular, he offered thoughtful insights on innovation, recognizing the vital role played by “diverse competition,” understanding innovation’s long-term horizon, and highlighting innovation’s importance in antitrust enforcement.
In the vein of channeling Bert’s fresh look at long-established issues and appreciation of innovation, I introduce and rebut four innovation myths in this chapter. Myths persist throughout the caselaw. But they are particularly likely to endure in this setting given the talismanic effect of the term “innovation.” No one can reasonably stand on the opposite side of “innovation,” the lifeblood of the U.S. economy. To do so would cast one’s lot with the fragile sands of backwards thinking and technological regression. Sometimes, however, innovation arguments are not appropriate or supported.
This chapter exposes four of these “innovation myths”: (1) innovation is reflected solely by the initial invention; (2) innovation can be evaluated only in product markets; (3) robust intellectual property enforcement leads to more innovation; and (4) innovation is the only objective in certain settings.
Keywords: innovation, patent holdup, FRAND, cumulative innovation, innovation markets, statutory damages
JEL Classification: K21, L40, L41, L63, L82, O31, O33, O34
Suggested Citation: Suggested Citation