Pictures at the New Economy Exhibition: Why the Antitrust Modernization Commission Got it (Mostly) Right

20 Pages Posted: 9 Jul 2007 Last revised: 5 May 2015

Michael A. Carrier

Rutgers Law School

Date Written: January 11, 2007

Abstract

Is antitrust law up to the task of addressing the "New Economy"?

That is the question many have asked in recent years. And that is one of the key questions addressed by the Antitrust Modernization Commission ("AMC"), a commission that Congress established in 2002 "to examine whether the need exists to modernize the antitrust laws."

Because antitrust in fact is able to address the new economy, the AMC got the big picture right.

The related middle picture is whether the antitrust laws - primarily sections 1 and 2 of the Sherman Act and section 7 of the Clayton Act - can take into account innovation and intellectual property ("IP"). Because they can, the AMC also was right in concluding that the statutes do not need to be revised.

The little picture involves more specific issues that the AMC did not address. One neglected issue, which the AMC had promised to review, involved "innovation markets," or markets for research and development. The Commission also sidestepped the most contentious issue in the IP-antitrust intersection today: patent settlement agreements between brand-name pharmaceutical firms and generic drug manufacturers.

The wrong picture is composed of patents. The AMC, made up of antitrust attorneys and economists, offered no particular expertise in addressing the complicated topic of patent reform. But the Commission tiptoed into the area to offer one substantive recommendation. Given that it considered nine patent reforms, the AMC's sole focus on the "nonobviousness" doctrine demonstrates that it included a wrong picture in the new economy exhibition.

Keywords: antitrust, new economy, Antitrust Modernization Commission (AMC), intellectual property, patents, innovation

JEL Classification: K21, L10, L12, L40, L41, L65, O30, O31, O34

Suggested Citation

Carrier, Michael A., Pictures at the New Economy Exhibition: Why the Antitrust Modernization Commission Got it (Mostly) Right (January 11, 2007). 38 Rutgers Law Journal 473 (2007) . Available at SSRN: https://ssrn.com/abstract=999083

Michael A. Carrier (Contact Author)

Rutgers Law School ( email )

217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)

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