Spring term, Block I
T 5:00 PM - 7:00 PM
Clinical Professor Phillip Malone
2 classroom credits LAW-90271A
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
concepts such as peer-production and user-generated innovation. We will
then examine relevant 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. We will devote substantial attention to recent 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, the European Microsoft decisions and investigations, and the
Korean Fair Trade Commission Microsoft case regarding software tying
and interoperability. 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 evolving antitrust implications of conduct in the
context of 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 and European
court cases, government guidelines, the recent 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 substantial familiarity with basic antitrust principles,
is a prerequisite.