Archive for the ‘Uncategorized’ Category
Thoughts on Transfer of Technology, and More
At today’s GCLC lunch talk on transfer of technology agreements, a number of thoughts sprung to mind. Here they are.
- As part of our professional ethics, we competition lawyers should stop saying that IP confers a form of “monopoly” on its owner. Like property rights over tangible goods, IP – I talk here essentially of patents – confers property. A patent confers property over the usage of technical specifications, full stop. But – and this is a big But – IP does not imply, as the term monopoly suggests, the absence of alternative technical specifications. On many markets, several IP compete for a given product, service, functionality.
- Aren’t we over-regulating the issue of standard-essential patents? There’s no robust evidence that patent thickets are a widespread + harmful phenomenon. However, as a result of the mass-mediatization of several cases, and of the possible inability of the Commission to deal with those cases swiftly and thoroughly, we are heading towards the adoption of general rules in a range of soft law instruments. Last year, we got a new section on standardisation in the Guidelines on Horizontal Cooperation Agreements. The upcoming revised TTBER and its set of accompanying Guidelines may just bring about more rules. As a matter of principle, I would question such an approach, absent empirical case-related evidence.
- The use of “double negatives” in the list of hardcore restrictions should be avoided. D. Woods said the Commission would make some thinking on this. And I trust most EU competition law students would be grateful if the Commission made progress on this.
- The SEP=SMP shortcut is misconceived. It fails to grasp that several standards, or non-standardized technologies can compete for a given functionality, product, service. Moreover, standardization is a repeated game, so any attempt by a SEP holder to raise fees may be sanctioned at a later stage by other standard participants. And finally, SEP holders must often obtain licences from other SEP holders.
- A speaker made the point that it would be counterintuitive if participants to patent pools had to pay experts to determine on an ongoing basis whether the patents are valuable (or not) and in turn should (or not) stay in the pool. It is indeed a little weird to pay someone and entrust him with the mission, and power, to kick you out. And there are other risks: conflict of interest, bribes, etc. But aren’t most trade associations paid by their members, and yet keep a right to exclude participants if the membership conditions are no longer met?
- A popular policy argument to discard the need (and legitimacy) of antitrust intervention is that contemplated market failures are caused by regulatory frameworks. And the argument logically follows that regulatory defects should be solved by bringing changes to the regulatory framework, not by applying the competition rules. This argument has been made in virtually all sectors of the economy that have attracted antitrust scrutiny in the past decades, e.g. pharma, financial markets, telecoms, etc. I have, myself, made this point in a number of papers, but I have second thoughts on it now. Whilst I still believe that pieces of legislation adopted under a fully democratic procedure should not be undermined by ex post bureaucratic competition enforcement, I am also a pragmatist. In this respect, I tend to consider that antitrust enforcement may bring quicker, and better fixes, than protracted regulatory action (for instance, a reform of the IP system in the case of patent thickets). Plus antitrust enforcement is more reversible than regulatory action (in case of mistake). And finally reforms of regulatory regimes just have corrective effects for the future, and do not address existing problems…
Apologies
Alfonso and I owe a big apology to Francesco Carloni (Shearman & Sterling), Luca Crocco and Gianni de Stefano (Latham & Watkins).
Our friends organized yesterday an anniversary cocktail to celebrate the first year of existence of Italian Antitrust Association antitrustitalia.
I came back late from Bruges, where I gave a presentation at the 8th ELEA seminar. I learned there that Phedon Nicolaides will take over Jacques Pelkmans as the head of the economics department.
Alfonso had other, very good reasons.
PS: I just fixed the link to the BSC brochure.
Antitrust Parable (2) – The Kroes and The Almunia
A well-inspired friend sent us a new version of yesterday’s Antitrust Parable. We liked it, so we post it:
The Kroes. The Kroes’ job was to catch as many fish as possible, and the bigger the better. Every fish she caught she showed it off and was very proud. When she caught a really big fish the press would report in wonderment about Kroes’s great prowess. If another NCA got a bigger fish, she was embarrassed and immediately went after a fish that was even bigger. Smaller fishes she threw back because she wanted more fish. She saw to it that there were plenty of places for fish to breed and plenty of sources of food for them. Anything that prevented the fish from thriving and multiplying she opposed, because she wanted more and bigger fish.
The Almunia. The Almunia hated cases and wanted only to protect the business. He did not want to catch cases, but caught any he discovered. But he also encouraged staff to scare away cases [settlement?]. He sealed up the holes where cases could hide. He looked for any technique anywhere that would scare away cases [press releases, speeches, RFI…]. If something worked against having cases, he used it. If he caught a case he apologized to the townspeople because one had gotten through. He did everything he could so there would be no cases now or in the future. He wanted to protect the grain for the townspeople.
Antitrust Parable – The Fisherman, the Miller and DG Comp
Here is a little story about the fisherman, the miller and DG Comp (courtesy of a source that we will keep confidential):
The fisherman. The fisherman’s job was to catch as many fish as possible, and the bigger the better. Every fish he caught he showed it off and was very proud. When he caught a really big fish the press would report in wonderment about the fisherman’s great prowess. If another fisherman got a bigger fish, he was embarrassed and immediately went after a fish that was even bigger. Smaller fishes he threw back because he wanted more fish. He saw to it that there were plenty of places for fish to breed and plenty of sources of food for them. Anything that prevented the fish from thriving and multiplying he opposed, because he wanted more and bigger fish.
The miller. The miller hated rats and wanted only to protect the grain. He did not want to catch rats, but caught any he discovered. But he also encouraged cats to scare away the rats. He sealed up the holes where rats could hide. He looked for any technique anywhere that would scare away the rats. If something worked against the rats, he used it. If he caught a rat he apologized to the townspeople because one had gotten through. He did everything he could so there would be no rats now or in the future. He wanted to protect the grain for the townspeople.
DG Comp. DG Comp views its job as catching as many cartels as possible, and the bigger the better. Every cartel it catches it shows off and is very proud. When DG Comp catches a really big cartel the press reports in wonderment about DG Comp’s great prowess. If another government gets a bigger cartel, DG Comp is embarrassed and immediately goes after a cartel that is even bigger. Compliance programs it ignores because it wants to find more cartels. Compliance programs can seriously harm the places where cartels breed and endanger the sources of conspirators necessary for cartels. Company in-house lawyers can help prevent cartels from thriving and multiplying, so DG Comp opposes their professional privilege. Anything that prevents a cartel from thriving and multiplying DG Comp opposes, because it wants to catch more and bigger cartels.
Mixed Bag
Alfonso must be busy dealing with the negative externalities inflicted by my previous posts (with which he had nothing to do, btw),
It is thus my task to run the blog today. In brief, I have also inflicted a negative externality to my poor self 😦
A mixed bag of things:
- The spirit of emulation within the ECN is amazing. The endives saga is just over. But the veggie decisional roulette keeps spinnin’. A few days ago, the Dutch competition authority slapped a €14,000,000 on bell pepper and onion growers for unlawful cartel. With this focus on agricultural products, the conspiracy theorist that sleeps in me cannot help but thinking that the MS are trying to get their CAP money back. Thanks to D. Mamane (Schellenberg Wittmer) for the pointer;
- Some more results, of EU officials this time, at the 20K: An Renckens (1:26:35); Oliver Stehmann (1:32:09); Sébastien Thomas (1:35:20); Anthony Whelan (1:50:36); Guillaume Loriot (1:52:06); Piet Van Nuffel (1:54:50). I stopped under 2 hours, as the list was pretty lenghty. Please send me your time if you want to appear on this post;
- Dan Sokol (University of Florida and Ioannis Liannos (UCL) new book The Global Limits of Competition Law is out. Looks really nice. Chillin’Competition would welcome a review copy;
- The American Antitrust Institute has put together The International Handbook On Private Enforcement Of Competition Law. Same here, a review copy would be appreciated;
- Who monitoring trustees really are? I thought until now that they were specialised consultants. But in reading a commentary on Intel/McAfee this morning, I learned that former CEOs also make good candidates. In this case, Mr. Olli-Pekka Kallasvuo, former CEO of Nokia, was appointed as Monitoring Trustee;
- Our friend David Mamane (him again) made my day in sending me a picture of today’s St Gallen competition conference. Apparently, my name was high on the screen (see picture on top of this post). Thanks to him, and to Tom Hoehn (the speaker), who quoted me in public;
- I was interviewed today in a local Belgian newspaper on what the concrete impact of the EU on Belgian’s daily life. A tricky question, which demanded quite some thinking. See the result here: Sudpresse – 7 juin 2012;
- Turning to less serious press, I was quoted in the LA Times on the Google case. From what I read, I disagree with Dennis Oswell (Oswell and Vahida). To me, the Commissioner’s move sends the signal that COMP’s case is weak. In line with past practice, the Commission could have simply requested a settlement behind closed doors it if it had had a strong case. My best scientific explanation of why the Commission departed from conventional practice? => it is trying to play some sort of poker game: with strong hands, try to look weak; with weak hands, try to look strong. And BTW, Regulation 1/2003 does not entitle the Commission to formally request Article 9 commitments. They must be proposed by the parties.
| 1:26:35 |
Competition law for kids
If you want to know how to teach the virtues of competition, the harms arising out of monopolies and the concept of an exclusionary abuse to 1-4 year old kids, this could do the trick: http://www.youtube.com/watch?v=3GZ5Yz97erE
Thanks to our yongest reader (Eduardo Guilbeau López, pictured below reading us) for the pointer [and congrats on his second birthday 😉 ]
More 20K results
More results, including several IP lawyers.
- Matthew Levitt (HoganLovells): 1:46:25
- Jean-Jo Evrard (former University of Liege and Darts IP): 1:47:31
- Enrique Gonzalez Diaz (Cleary): 1:48:44
- Norman Neyrinck (University of Liege): 1:48:52
- Alain Strowel (University of Liege): 1:49:01
- Thomas Wiese (Ashurst): 1:50:52
- Valentijn de Boe (Allen&Overy): 1:51:56
- Tom McQuail (Morrison Foerster): 1:54:59
- Damien Gerard (Cleary): 1:57:30
- Philip Bentley (Mc Dermott): 1:56:49
- Dirk Auer (Herbert Smith, former ULg student): 1:58:29
- Cedric Burton (Hunton & Williams): 2:01:45
- Maarten Meulenbelt (Sidley): 2:02:10
- Geert Zonekeyn (Ronse): 2:07:10
- Kristina Nordlander (Sidley): 2:10:05
- Philip Werner (Mc Dermott): 2:13:36
- Sarah Ashall (Shearman): 2:57:53
PS: I just selected the people I know. Apologies to those that I missed.
The Fastest Antitrust Expert Award
[If you’re reading this, it means that the above pic of Robocop Nicolas hasn’t scared you off, in which case you’ve earned my respect]
A few posts ago we referred to the proliferation of awards in the competition law world and we created what we referred to as the “first objective legal competition”: the Fastest Antitrust Expert Award. The idea was to give the award to the competition law expert who could run the Brussels 20k faster. We said that we would both participate. Nicolas did and I didn’t (a few days before I was told not to because I seem to have a herniated disc, a.k.a. a very convenient excuse, so I followed the maxim “when in doubt, chicken out“).
A bunch of you ran too. Some of you (mainly our friends who wanted to show off) have been kind enough to send their times. The contest is still open: you have until Friday to submit your results. The provisional semi-finalist readers/runners are the following:
1) Mark English (Shearman & Sterling): 1h 39′ 21” (it was about time that Mark earned a reputation for something other than endive bashing).
2) Nicolas Petit (Chillin’ Competition): 1h 42′ 02” (actually, there’s another (?) Nicolas Petit who apparently did not finish the race -see here ChronoRace20k-; who’s who?).
3) José Enrique Elías (Chief Economist Team): 1h 44′ 12′. We are told that José Enrique ran fast because he was being chased by some violent ordoliberals who were throwing stones at him.
4) Napoleón Ruiz (Garrigues): 1h 48′ 39”. Napoleón was, in fact, one of the ordoliberals throwing stones at José Enrique.
We are also told that Philip Lowe (former Director General at DG Comp, now Director General for Energy) did 1h 42′ 30” and that G.J. Koopman (Deputy Director General for State Aid) did 1h 49′ 27”. Very impressive.
Congrats to all others who took part in the race, and especially to those who signed up by commenting on the previous post, namely Philip Werner, Sandy Tsakiridi, Montse Adam and M. Fevzi Toksoy.
Once again: this post serves not only as a provisional set of results but also as a final call for any other readers to submit their times. We will publish a definitive list – and announce the winner of the coveted Friday slot and Li-ning shoes – in the coming days. So, who beats Mark English?
Job advertisement
Job Vacancy – Professor (100%) in the Department of European Legal Studies at the College of Europe (Bruges campus)
The College of Europe (Bruges campus) is seeking applications for the position of a full-time professor in the Department of European Legal Studies (www.coleurope.eu/law), starting on 1st September 2012.
Essential requirements are:
- a Ph.D. European Law with an excellent result
(applications of candidates who have already formally submitted but not yet defended their Ph.D-thesis at the date of application are also admissible ; however, the doctorate needs to be obtained before taking up duties on 1 September 2012) - a proven interest in European Law, demonstrated by a list of publications,
- university-level teaching experience,
- a very good command of English and French,
- the ability to work as part of a team,
- good organisational skills and a high measure of flexibility (working time can include evenings and week-ends).
Tasks include:
- teaching an LLM course in the field of European Law, including the supervision of Master’s theses,
- research and publication in the field of European Law, and
- assisting the Director of the Department in leading and supervising a team of assistants, the organisation of conferences, the management of the study programme (including the ELEA-specialization), and the selection of prospective LLM students.
The College offers:
- an excellent academic setting,
- the possibility of teaching and interacting with high-level graduate students,
- a stimulating and international working environment,
- a four-year contract under Belgian law, renewable, and
- remuneration in relation to qualification and experience of the successful candidate.
Mail or e-mail applications, either in English or French, comprising a detailed curriculum vitae, transcripts, a list of publications and courses taught as well as a letter of motivation and contact details of two references should be submitted at the latest by 1st June 2012 to
Professor Paul Demaret
Rector
College of Europe
Dijver 11, BE-8000 Bruges
Belgium
e-mail ann.verlinde@coleurope.eu
Successful applicants will be invited for an interview. Should you require any further information, please contact the Director of the Department, Professor Govaere (inge.govaere@coleurope.eu).
Nico’s fools day
I was the first victim of the scam. Here’s my version of the story:
I was having a particularly busy and tough week: swamped at work and unsuccesfully trying to give a hand to some close people who are having trouble coping with the crisis in Spain. So I didn’t have the time to write anything on this blog and, in full frankness, to a certain extent I didn’t feel like it (at times it feels weird to focus on this very narrow field of competition law when there are so many more important things going on out there). Last week was somehow similar, and we covered it with some “easy” brief posts. But since we are becoming increasingly more concerned about not sacrifying quality in exchange for output, I told Nicolas yesterday that I wouldn’t have time to write anything this week. He said he would take care of posting something. So far so good.
At around 18 pm I was at a meeting with Luis Ortiz, Marcos Araujo and Susana Cabrera when suddenly I started receiving a first set of weird emails entitled: “I’m so sorry“, “What happened?”, etc. So I first thought: has Spain collapsed or what on earth is going on??
Then I see another set of emails coming in asking “Is it a joke?“. I still had no idea of what they were talking about, but judging by the number of emails it looked like something big.
But then a minute later I get one from Nicolas entitled “Check out my post…” followed by some others asking what had I done to him (?!). It took a few hours until I was able to read the post, but then I read it and understood all the fuzz. Of course it was a joke (although the fact that it wasn’t funny might have misled you to believe it wasn’t!).
Since then I’ve received tenths of very kind emails from all kinds of people (most of whom I’ve actually never met, which is nice). I’ve tried to respond saying that everything was ok, but, once again, there was no time to respond to everyone.
Not only we’re not parting ways [although after this I’m starting to have second thoughts 😉 ] but we’re thinking about ways to make this blog better. Our problem is that there are now too many things on which we would like to write something sensible, and since you are a particularly informed and smart bunch of readers, we’re afraid not to have the time to stand up to the challenge (and perhaps the brains neither; don’t let the size of Nico’s head fool you) (sorry but it’s easy-joke-day around here!).
In sum, the show will go on, for whatever it’s worth.
A few additional comments:
– Whoever wrote the comment saying that after our divorce I should keep the blog has definetely earned a free dinner!
– Could the creator of chilledcompetition please identify himself? (No sooner has one gone that another comes along…). I’m impressed by the fast move. You deserve a guest post here!
– If what Nicolas wanted was traffic then the scam was a successful one; more than 3,000 visits in less than 24 hours is insane for a blog like this.
– Next time my dear co-blogger does something like this without consulting me first we’ll split up for good!
– We owe you one. Those interested in having one or a few beers on Sunday evening (post Brussels 20km + Street jazz festival) are welcome to join us. Everything is on Nicolas, of course. No kiddin’ here.
– This very timely scam has made me lose most of today’s morning. And now I’m leaving for the airport. My firm will take care of billing Nico for this (hourly rates apply).
Chillin'Competition 