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Business Statistics Donnelly Pdf 16
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Rosalia Radley
Dec 7, 2023, 10:20:16 AM12/7/23
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For other per se violations, such as naked agreements to fix price, plaintiffs are not required to define the relevant product markets or show that the defendant has market power in a relevant market. In addition, some courts have shown a willingness to consider business justifications for the alleged tie,(24) and some courts have required proof that the tie has anticompetitive effects.(25)
The Agencies, as a matter of sound economics, had chosen not to rely on such a presumption prior to Illinois Tool.(53) As the Antitrust-IP Guidelines explain, the Agencies "will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner. Although the intellectual property right confers the power to exclude with respect to the specific product, process, or work in question, there will often be sufficient actual or potential close substitutes . . . to prevent the exercise of market power."(54) The Agencies therefore investigate the relevant market to determine whether the intellectual property at issue grants any market power in the economic sense. If such market power is found, the Agencies further investigate whether the business practice under scrutiny is likely to be anticompetitive on balance.
Business Statistics Donnelly Pdf 16
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Panelists addressed several issues that attorneys confront when counseling clients with regard to intellectual property bundling. One panelist noted that, in addition to the courts' inconsistent treatment of cases involving intellectual property bundling, courts have also differed in ordinary tying cases as to whether: (1) a plaintiff must show harm to competition in the tied product market; and (2) a defendant's evidence of business justification is admissible.(55) "The result of this is when the client asks you about what the rules are governing bundling of intellectual property . . . you cannot give a clear answer. [Lawyers have to give] the cautious advice . . . please, don't do it; the risk [of litigation] is too great."(56)
Legal and policy analysis of intellectual property bundling has evolved over time. Older case law, with its per se rule and presumption of market power, contends with the current analysis of the Agencies and some more recent lower court decisions that embody, in essence, a rule of reason approach. Moreover, the Supreme Court recently eliminated its rule presuming market power based on intellectual property. Panelists noted that, although intellectual property bundling may have anticompetitive potential in certain circumstances, there may also be significant efficiency justifications for such bundling in some cases. Thus, as a matter of their prosecutorial discretion, the Agencies will apply the rule of reason when evaluating intellectual property tying and bundling agreements.(74) Given the ubiquitous use of these arrangements by businesses lacking in market power and the efficiencies that such arrangements can often entail, these practices usually are not anticompetitive. When the Agencies do identify anticompetitive situations, however, they will pursue them.
55. May 14 Tr. at 29-30 (Jacobson); see also supra notes 22-25, 50-52 and accompanying text (discussing types of proof required by some courts in tying cases including market definition, business justifications, and anticompetitive effects).
56. May 14 Tr. at 30-31 (Jacobson). Such results can harm consumers. Cf. Hovenkamp, 47 Antitrust Bull. at 382 ([Socially costly rules include] "the enormous compliance costs of those who are denied a more efficient method of doing business for fear of breaching a senseless antitrust rule.").
72. One of the panelists discussed how, if the per se rule for tying is ultimately abandoned, courts can best deal with complex issues so as both to reach the right answers in individual cases and to provide some predictability as to how business practices will be analyzed. May 14 Tr. at 54-63 (Lipsky); Abbott B. Lipsky, Amateurs in Black (May 14, 2002 Hr'g R.) at 6-12, [hereinafter Lipsky Submission]. Lipsky said that the Supreme Court, in a series of four cases beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993), has mandated that the district courts assume the position of gatekeepers and make independent evaluations (subject to review for abuse of discretion) of the relevance, reliability, and fit of expert testimony. He suggested that this procedure has revolutionized the presentation of expert testimony and noted that in a number of antitrust cases expert testimony has been rejected. He maintained that, when courts evaluate particular patent licensing practices, they will need institutions superior to those currently available in order to generate improvements in the quality of economic analysis. Possible approaches that he described include certification by an expert body, such as the National Academy of Sciences or American Economic Association, appointment by the court of an expert under rule 706(a) of the Federal Rules of Evidence, or use of a law clerk particularly skilled in economics. May 14 Tr. at 54-63 (Lipsky); see also Lipsky Submission at 7-12.
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The Agencies, as a matter of sound economics, had chosen not to rely on such a presumption prior to Illinois Tool.(53) As the Antitrust-IP Guidelines explain, the Agencies "will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner. Although the intellectual property right confers the power to exclude with respect to the specific product, process, or work in question, there will often be sufficient actual or potential close substitutes . . . to prevent the exercise of market power."(54) The Agencies therefore investigate the relevant market to determine whether the intellectual property at issue grants any market power in the economic sense. If such market power is found, the Agencies further investigate whether the business practice under scrutiny is likely to be anticompetitive on balance.
Business Statistics Donnelly Pdf 16
DOWNLOAD https://t.co/fUUmV4I9nG
Panelists addressed several issues that attorneys confront when counseling clients with regard to intellectual property bundling. One panelist noted that, in addition to the courts' inconsistent treatment of cases involving intellectual property bundling, courts have also differed in ordinary tying cases as to whether: (1) a plaintiff must show harm to competition in the tied product market; and (2) a defendant's evidence of business justification is admissible.(55) "The result of this is when the client asks you about what the rules are governing bundling of intellectual property . . . you cannot give a clear answer. [Lawyers have to give] the cautious advice . . . please, don't do it; the risk [of litigation] is too great."(56)
Legal and policy analysis of intellectual property bundling has evolved over time. Older case law, with its per se rule and presumption of market power, contends with the current analysis of the Agencies and some more recent lower court decisions that embody, in essence, a rule of reason approach. Moreover, the Supreme Court recently eliminated its rule presuming market power based on intellectual property. Panelists noted that, although intellectual property bundling may have anticompetitive potential in certain circumstances, there may also be significant efficiency justifications for such bundling in some cases. Thus, as a matter of their prosecutorial discretion, the Agencies will apply the rule of reason when evaluating intellectual property tying and bundling agreements.(74) Given the ubiquitous use of these arrangements by businesses lacking in market power and the efficiencies that such arrangements can often entail, these practices usually are not anticompetitive. When the Agencies do identify anticompetitive situations, however, they will pursue them.
55. May 14 Tr. at 29-30 (Jacobson); see also supra notes 22-25, 50-52 and accompanying text (discussing types of proof required by some courts in tying cases including market definition, business justifications, and anticompetitive effects).
56. May 14 Tr. at 30-31 (Jacobson). Such results can harm consumers. Cf. Hovenkamp, 47 Antitrust Bull. at 382 ([Socially costly rules include] "the enormous compliance costs of those who are denied a more efficient method of doing business for fear of breaching a senseless antitrust rule.").
72. One of the panelists discussed how, if the per se rule for tying is ultimately abandoned, courts can best deal with complex issues so as both to reach the right answers in individual cases and to provide some predictability as to how business practices will be analyzed. May 14 Tr. at 54-63 (Lipsky); Abbott B. Lipsky, Amateurs in Black (May 14, 2002 Hr'g R.) at 6-12, [hereinafter Lipsky Submission]. Lipsky said that the Supreme Court, in a series of four cases beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993), has mandated that the district courts assume the position of gatekeepers and make independent evaluations (subject to review for abuse of discretion) of the relevance, reliability, and fit of expert testimony. He suggested that this procedure has revolutionized the presentation of expert testimony and noted that in a number of antitrust cases expert testimony has been rejected. He maintained that, when courts evaluate particular patent licensing practices, they will need institutions superior to those currently available in order to generate improvements in the quality of economic analysis. Possible approaches that he described include certification by an expert body, such as the National Academy of Sciences or American Economic Association, appointment by the court of an expert under rule 706(a) of the Federal Rules of Evidence, or use of a law clerk particularly skilled in economics. May 14 Tr. at 54-63 (Lipsky); see also Lipsky Submission at 7-12.
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