Many of today's most exciting and challenging developments in antitrust law arise in cases involving innovative technology industries. This seminar will take a detailed and critical look at the unique challenges to existing antitrust doctrine and enforcement presented by such cases. We will begin by examining relevant economic research and theory regarding the operation and characteristics of dynamic, innovation-driven markets, including network effects, path dependence, standardization, platform and systems competition, technical compatibility and interoperability. We will then explore theories and evidence concerning the relationships between competition, market structure and innovation, including Schumpeterian and Arrow models and subsequent refinements and critiques. The seminar will consider difficult issues of antitrust market definition, particularly in the context of computer technology, the internet and pharmaceuticals, including technology and innovation markets. A major portion of the seminar will be analyze some of the most challenging issues presented by the intersection of antitrust and intellectual property law in technology markets, including comparative US and European treatment of unilateral refusals to license intellectual property; patent thickets, cross-licenses, and pools; reverse payments and other agreements to settle patent litigation; and the antitrust implications of conduct in industry standard-setting organizations. Throughout the course, we will evaluate the similarities and differences between US, EU and other laws 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, European and other court cases, government guidelines, official reports such as the FTC/DOJ Antitrust and IP Report, economic and legal academic literature, enforcement Agency hearings and speeches, and actual litigation and appellate materials from relevant cases.
Prerequisites: An overview course or other prior seminar in antitrust law; or other demonstrated substantial familiarity with basic antitrust principles and permission of the instructor.