Mr. Phillip R. Malone 2 classroom credits LAW-90271A Spring
Many of the most exciting and challenging recent developments in antitrust law have arisen in cases involving innovative technology industries such as the Internet, computer software and hardware, and other information technologies. This seminar will take a detailed and critical look at some of the unique challenges to existing antitrust doctrine and enforcement efforts raised by these industries. We will begin by exploring the relationships between competition, market structure and innovation, including the application of Schumpeterian models and subsequent refinements and critiques, and alternative models such as peer-production and user-generated innovation. We will then examine recent economic research and theory regarding the operation and characteristics of dynamic, innovation-driven markets, including network effects, standardization, platform and systems competition, technical compatibility and interoperability, and ecosystem/keystone theory. The seminar will consider difficult issues of antitrust market definition, particularly in the context of computer technology and pharmaceuticals, including technology and innovation markets and the challenge of identifying breaks in a continuum of functionality of software products. We will devote substantial attention to ongoing developments in the antitrust treatment of product innovation and design decisions such as predatory design, bundling, software integration, and technological tying, including a comparison of the D.C. Circuit's two Microsoft decisions and the European Commission, European Court of First Instance, and Korean Fair Trade Commission Microsoft cases regarding software tying. We also will look at recent evolution of the definitions of exclusionary conduct in technology markets, including the Supreme Court's Trinko decision, and will specifically examine duties to deal, duties to disclose and the withholding of technical information. A substantial portion of the seminar will be devoted to analyzing some of the most challenging issues presented by the intersection of antitrust and intellectual property law in technology markets, including market power following the Supreme Court's decision in Independent Ink; general principles of limits on IP licensing; comparative US and European treatment of unilateral refusals to license intellectual property; patent thickets, cross-licenses, pools, reverse payments and other agreements to settle patent litigation; and the evolving antitrust implications of certain conduct in the context of industry standard-setting organizations.
Throughout the course, we will evaluate the similarities and differences between US and EU law in their respective doctrinal approaches to and practical treatment of various key seminar topics. Readings will be drawn from a wide variety of leading US and European court cases, government guidelines, the recent FTC/DOJ Antitrust and IP Report, recent economic and legal academic literature, enforcement Agency hearings and speeches, and actual litigation and appellate materials from relevant cases. An overview course or other prior seminar in antitrust law, or other substantial familiarity with basic antitrust principles, is a prerequisite.