Antitrust and Intellectual Property
Antitrust Law Remedies in Intellectual Property Cases
In any research paper it is important to first define the terms used prominently in order to make sure that the reader understands what is being said. In this case, the two terms that require definition are antitrust and intellectual property. According to a definition from Cornell University Law School "Trusts and monopolies are concentrations of economic power in the hands of a few." Thus, antitrust legislation would logically follow as "designed to protect competition and protect free trade" (Putnam). Mark Putnam, a business ethics expert, goes on to say that "Basically, antitrust laws prohibit price-fixing, allocating territories, boycotts, or any other kind of conspiratorial or monopolistic behavior between companies that unfairly restrain free trade." Intellectual property, however, is different entirely from a trust. The United States Patent and Trademark Office (USPTO) which deals almost exclusively with intellectual property defines it…...
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Works Cited
Anthony, Sheila F. "Antitrust and Intellectual Property Law: from Adversaries to Partners." AIPLA Quarterly Journal 28.1 (2000): 1-22. Print.
Bingaman, Anne K. "The Role of Antitrust in Intellectual Property." Federal Circuit Judicial Conference (Patent and Trademark Breakout Session), Washington, D.C. 16 June 1994. Web.
Bowen, John. "Eastman Kodak Co. v. Image Technical Services, et al." Duke Law, 2003. Web.
Cannon, Constantine. "Comparing Antitrust Guidelines in the U.S. And Korea." Law 360, 2012 31 January. Web.
Antitrust laws are laws that were enacted to guarantee American consumers the right to expect the benefits of free and open competition. Such laws are enforced by the United States Department of Justice's antitrust division (Anonymous, 2010). There are numerous Acts that constitute the Antitrust Laws. These include the Sherman Act, Clayton Act, and the obinson-Patman. Sherman Act, the primary federal antitrust provision, seeks to promote and protect competition by outlawing any form of combination or conspiracy that restraint interstate commerce.
Antitrust legislations envisaged a situation where competitors would collude and engage in price fixing, bid rigging, market division, or allocation of schemes to the disadvantage of the consumers who may have to buy goods or access services at inflated prices. The customers could also end up getting cheated (Anonymous, 2010).
The Antitrust laws were legislated to deter dishonest businessmen from engaging in price fixing activities. Competitors can collude to raise, fix,…...
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References
Anderson, R.W & Johnson, R.N. (1999). Antitrust and Sales-Below-Cost Laws: The Case of Retail Gasoline. Review of Industrial Organization, 14(3), 189-204.
Anonymous. (2010). Price Fixing, Bid Rigging, and Market Allocation Schemes: What They Are
Technology, social networking sites, and anti-competitive behavior
Q1.Why was/were the firm(s) investigated for antitrust behavior?
IBM, AT&T, Microsoft, Intel, Google, Twitter, and Facebook are all technology companies that have been accused of operating as de facto and de jure monopolies: in other words, of engaging in blatant violations of the Sherman Antitrust Act or of substantially limiting market competition to such a degree that a monopoly has been created and consumer choice has been limited in a negative fashion. "From an antitrust standpoint, monopoly power is the power to raise price or exclude competition. Monopoly power is not unlawful in its own right, but unless a firm is deemed to have monopoly power (or at least a dangerous probability of acquiring such power), it cannot be held liable for monopolization or attempted monopolization" and having a negative impact upon consumers (Waller 2012: 1775). This paper will specifically profile…...
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References
Efrati, A. (2013). There's no avoiding Google +. WSJ. Retrieved from:
As noted by Greaney (2009) competition is heavy on the legislative minds of the United States and it is believed as evidence by all proposals stating the same that competition is the factor that will drive the competition in the health care market and ultimately will be that which resolves many of the present consumers complaints and shortcomings of the health care programs presently in use in today's Health Care market. Excess and waste are noted as two primary costs associated with the health care market that must be effectively addressed.
Sage, William M., Hyman, David a. And Greenberg, Warren (2003) Health Affairs. Vol. 22, No. 2, 2003 Project Hope. Online available at: http://content.healthaffairs.org/cgi/reprint/22/2/31.pdf
Greaney, Thomas L. (2009) Statement of Professor efore the Subcommittee on Consumer Protection,…...
Greaney, Thomas L. (2009) Statement of Professor Before the Subcommittee on Consumer Protection, Product Safety and Insurance. Committee on Commerce, Science and Transportation United States Senate. 16 July 2009. Online available at: http://law.slu.edu/healthlaw/news_stories/statement.pdf
.. are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end to which the particular union activities are the means.'
The law, however, still bites on situations where trade unions and groups of employers conspire together to suppress or eliminate competition. In other words, businessmen are not entitled to take advantage of the relative immunity of labor and suborn the union, perhaps in consideration of a wage increase, to carry out restrictive schemes that they cannot legally operate themselves. Cases in which collusion between employers and unions is alleged are not infrequent; even so, some commentators believe that a serious loophole is left, since the community of interest between employers and unions may at times be so close that collusion is either unnecessary or of so informal a nature that its occurrence cannot be proved.
Public utilities are…...
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Supreme Court opinion in United States v. Hutcheson (1941)
Corwin D. Edwards, Maintaining Competition (New York, McGraw-Hill, 1949), pp. 82
United States v. Investors' Diversified Services et al.
Antitrust Law: The Microsoft Company Probe
Antitrust law umbrellas all pieces of federal and state legislation that are aimed at regulating commerce and trade by preventing price fixing and unlawful restraints, and controlling monopolies so as to maximize consumer welfare by promoting competition, encouraging quality production and ensuring reasonable prices (Farlex, 2014). Monopolies and oligopolies are the two forms of market structures covered under antitrust law. Such could be natural monopolies, government monopolies, or monopolies resulting from collusion. One significant feature of these is that a handful of firms (one firm in the case of monopoly) control the entire market, and therefore enjoy significant market power. Owing to this, such firms often charge a price higher than would be the case in a competitive structure (monopoly price), and produce less-than-optimal output levels. The resultant productive and allocative inefficiencies, as signified by the monopoly dead weight loss and high prices provide the…...
Shughart II, W.F. (1995). Public-Choice Theory and Antitrust Policy. In McChesney, F. & Shughart II, W.F. (Eds.), The Causes and Consequences of Antitrust: the Public-Choice Perspective (pp. 7-24). Chicago, IL: Chicago University Press.
One recent antitrust action has been between the United States Justice Department and the credit card companies. The government has argued that American Express has hindered competition in the credit card market. At issue are rules that AMEX imposes on retailers to prevent them from offering incentives to customers to use other cards (Longstreth, 2014). This is not the first time that credit card companies have faced antitrust action, either. In 2012, Mastercard and Visa entered into a settlement worth $7.25 billion, regarding alleged price fixing of the interchange fees that are paid by merchants when customers use Mastercard or Visa for their purchases. Interchange fees are paid by the store to the credit card company. When these two companies always charge the same fees, it opened up the possibility of antitrust legislation, with accusing of collusion. The settlement meant that the companies were not officially found of any…...
Antitrust Exemptions
One of the first national laws against trusts and monopolies was the Sherman Antitrust Act of 1886, which applies to all businesses engaged in interstate or international commerce. Federal law and the courts have defined commerce very broadly, as the "giving of essentially anything in return for barter or money" unless a specific exemption is granted (ABA, p2007, p. 7). Up to the 1970s and 1980s, many industries had such exemptions, including shipping, trucking, airlines, and telephones, on the grounds that excessive competition was destructive and destabilizing to the economy or that foreign cartels had an unfair advantage over American industries. According to the Clayton Act and Federal Trade Commission Act of 1914, and the National Labor elations Act of 1935, labor unions are specifically exempt from prosecution on antitrust grounds. Moreover, the Supreme Court has granted them non-statutory exemptions in the Jewel Tea and Pennington cases of 1965.…...
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REFERENCES
Federal Statutory Exemptions from Antitrust Law (2007). American Bar Association, Section on Antitrust Law, Monograph 24.
Spengler, J.D. et al. (2009). Introduction to Sports Law. Human Kinetics.
Wise, A.M. And B.S. Meyer (1997). International Sports Law and Business, Volume 1. Kluwer Law International.
Wong, G.M. (2010). Essentials of Sports Law, 4th Edition. ABC-CLIO.
Antitrust
The enforcement action being studied is that of Novartis AG. The case involves the proposed acquisition by Novartis of Alcon Inc., which is a subsidiary of Nestle. The industry in question is the injectable miotics, which is a $12.4 million market. Injectable miotics are a class of prescription pharmaceuticals. These two companies are the only two in the industry, with respective market shares of 67% and 33%. Post-merger, Novartis would have a 100% share of this industry in the United States.
The specific antitrust act that is relevant to this investigation is the Clayton Act, Section 7 and Section 5 of the Federal Trade Commission Act. If the merger went through, Novartis would have a monopoly in the injectable miotics industry. Firms with monopoly power have no market incentive to constrain their prices. The risk to consumers of this deal is that Novartis would have complete pricing power in this category.…...
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Works Cited
Eppel, K. & Schaffer, R. (1996). The transition from monopoly to competition: The case of housing insurance in Baden-Wurttemberg. European Economic Review. Vol. 40 (3-5) 1123-1131.
Meier, M., Albert, B. & Brau, S. (2012). Overview of FTC antitrust actions in health care services and products. Federal Trade Commission. Retrieved November 16, 2012 from http://www.ftc.gov/bc/healthcare/antitrust/hcupdate.pdf
The government discarded its claims under section 1 after adverse evaluation at the appellate court level. The center of the government's elite contracts accusation was that Microsoft had banned the allocation of Netscape's competing Web browser. This dispute was unproductive at the district court level since Netscape's continued to expand throughout the late 90's (Butts, 2010).
Tying is fundamentally a contract conditioning the acquiring of one product on the purchase of another. Tying infringements are found where two separate products are concerned; the defendant forces its consumers to take the tied good in order to attain the tying product; the agreement influences a considerable volume of interstate business; and the defendant has marketplace control in the tying product market. The government disputed that Microsoft was at fault of tying because IE and Windows were thought to be two distinct products by customers, Netscape had experienced a decline in revenues ensuing…...
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References
Butts, Chris. (2010). The Microsoft Case 10 Years Later: Antitrust and New Leading
"New Economy" Firms. Northwestern Journal of Technology and Intellectual Property,
8(2), 275.
International Directory of Company Histories, Vol.63. St. James Press, 2004.
Antitrust
Failure of the Firm to Increase Market Power through the Merger
Merging refers to a corporate combination of two or more independent companies into one enterprise. A merge can take various forms such as a dominant firm purchasing the shares of another or a mutual agreement by two rival firms to cut unhealthy competition between them. The forms of mergers between companies can be horizontal, vertical or market extensional. The form of merger in our case is horizontal because the two rival firms produce the same commodities and serve the same market. The aim of this merger is to reduce rivalry and increase market power for both companies. The merger did not produce the intended purpose, and as a result, our company has not increased its market power. The aims of the merger were also to increase market efficiency, market extension, eliminate competition from other companies within the industry and cut…...
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References
Straub, T. (2007). Reasons for the Frequent Failures in Mergers and Acquisitions: A
Comprehensive Analysis. Printed in Germany: Springer Publishers
Banerjee, S.B. (2009). Corporate Social Responsibility: The Good, the Bad and the Ugly.
Antitrust egulations and Business Law
Antitrust regulations regulate economic activity in a way that encourages competition and discourages collusion between competitors. This collusion could be the result of horizontal mergers, price fixing, or even vertical contracts, which act to exclude competitors from a market. Antitrust regulations and actions are often hot button issues within the economics community as well as the business law field. Many different cultures have varying ides and understandings of these issues and may deal with them in completely different ways. This can, and does occur within the framework of U.S. business relations and exchanges, especially on the internet. As technologies change and adapt, antitrust laws and regulations need to be changed as well.
There is a mountain of evidence suggesting that while the current U.S. antitrust laws are quite effective on the macro level, many of these regulations were put in place before the economics of firms and…...
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References
Averitt, N.W. And Lande, R.H. (2007). "Using the Consumer Choice Approach to Antitrust Law." Antitrust Law Journal. Vol. 74. Pp. 175-178.
Farmer, S.B. (2010). "Feature Article: The Impact of China's Antitrust Law and Other Competition Policies on U.S. Companies." Loyola Consumer Law Review. Vol. 34, No. 1. Pp. 25-29.
Foster, S.E. (2010). "Too Big to Fail- Too Small to Compete: Systemic Risk Should
be Addressed Trough Antitrust Law but such a Solution Will Only Work if it is Applied on n International Basis." Florida Journal of International Law. Vol. 22, No. 31. Pp, 77-83.
New York Yankees, 1953; Picher, 1997; as cited by Scremin, 2005). It is interesting to note that: "with the exception of baseball, to some extent, all other major professional sports have had to adapt their rules and policies to comply with antitrust law." (Scremin, 2005) The principle was again tried in the case Flood v. Kuhn in 1972 but the U.S. Supreme Court reaffirmed the exemption.
ANALYSIS
According to the U.S. Supreme Court due to exemption from antitrust laws claimants making claims based on federal antitrust laws in the major league did not have sufficient basis for suit because the U.S. Supreme Court did not assume jurisdiction over the baseball teams even though clubs did travel across state lines and even though players could be transferred across a state line to another club. The reasoning for this is the fact that during the development of the existing antitrust legislation as well…...
The Application of Federal Antitrust Laws to Major League Baseball (2002) Hearing Before the Committee on the Judiciary United States Senate, One Hundred Seventh Congress - Second Session, 13 February, 2002. Serious No. J-107-50. Online available at http://www.businessofbaseball.com/docs/SenateAntiTrustHearing.pdf .
Ross, Michael E. And Sashe D. Dimitroff (1997) Whose Field of Dreams? - Antitrust Relief Against Restrictions on the Sale or Relocation of Major League Fall 1997 Antitrust Bulletin. Online available at http://www.kslaw.com/library/articles.asp?18
Antitrust
A common reason for antitrust investigation is with mergers and acquisitions. The Department of Justice must approve proposed mergers, to ensure that the merger or acquisition activity does not unduly restrain competition in an industry or market. One recent example of antitrust investigation came with the bids by Dollar General and Dollar Tree to acquire Family Dollar. The concern was that post-merger, the combined entity would be able to constrain competition and by virtue of that raise prices, in a market whose customers depend on access to those low prices (Heneghan, 2015).
Antitrust behavior comes with it costs to the economy. The underlying principle of antitrust legislation is that when there is insufficient competition in a market, the participants in that market have the ability to exploit that lack of competition, and raise their prices to a level that would not occur if the market was competitive (Investopedia, 2015). The government…...
The Structural approach believes high barriers to entry reduces efficiency and the potential entry may not limit the power of incumbent firms. Chicago believes barriers to entry are due to the efficiency of incumbent firms and the potential to entry limits the economic power of incumbents. On the other hand, New IO believes barriers can be present, especially from the economics of standardization that can lead to market power of an incumbent. The New IO approach agrees with the Structural approach where market power derives from horizontal power and vertical arrangements, but also views market power as extended through strategic behavior. Chicago, on the other hand, views market power as only deriving from horizontal factors.
The Structural approach believes that collusion can be expected with profit increases and is more likely in concentrated markets. The Chicago approach believes that is not likely due to the difficulty of enforcement and is more…...
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