26 Pages Posted: 10 Mar 2006
Date Written: March 2006
Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present can often be determined without examining the substance of the standard itself.
When government involvement in standard setting is substantial antitrust challenges should generally be rejected. The petitioning process in a democratic system protects even bad legislative judgments from collateral attack. In any event, antitrust's purpose is to correct private markets. It is not a general corrective for political processes that have gone awry. The best case for antitrust liability occurs when the government has somehow been deceived into adopting a standard that it would not have adopted had it known the true facts. Even then, nonantitrust remedies such as equitable estoppel are probably a superior solution.
Keywords: Antitrust, Competition, Standard Setting, Technology, Networks, Exclusion, Collusion, Regulation
JEL Classification: K21, L12, L44
Suggested Citation: Suggested Citation
Hovenkamp, Herbert J., Standards Ownership and Competition Policy (March 2006). U Iowa Legal Studies Research Paper No. 05-44. Available at SSRN: https://ssrn.com/abstract=889335 or http://dx.doi.org/10.2139/ssrn.889335
By Tim Wu