Interesting New Book
Hart Publishing has a new volume which looks very interesting. Hart Publishing has offered to send a free copy in exchange for ad placement. Given my current research focus on IP and Antitrust, I have decided to accept the offer.
Intellectual Property, Antitrust and Cumulative Innovation in the EU and the US
By Thorsten Käseberg
For decades, the debate about the tension between IP and antitrust law has revolved around the question to what extent antitrust should accept that IP laws may bar competition in order to stimulate innovation. The rise of IP rights in recent years has highlighted the problem that IP may also impede innovation, if research for new technologies or the marketing of new products requires access to protected prior innovation. How this ‘cumulative innovation’ is actually accounted for under IP and antitrust laws in the EU and the US, and how it could alternatively be dealt with, are the central questions addressed in this unique study by lawyer and economist Thorsten Käseberg.
Taking an integrated view of both IP and antitrust rules – in particular on refusals to deal based on IP – the book assesses policy levers under European and US patent, copyright and trade secrecy laws, such as the bar for and scope of protection as well as research exemptions, compulsory licensing regimes and misuse doctrines. It analyses what the allocation of tasks is and should be between these IP levers and antitrust rules, in particular the law on abuse of dominance (Article 102 TFEU) and monopolisation (Section 2 Sherman Act), while particular attention is paid to the essential facilities doctrine, including pricing methodologies for access to IP.
Many recent decisions and judgments are put into a coherent analytical framework, such as IMS Health, AstraZeneca, GlaxoSmithKline (in the EU), Apple (France), Orange Book Standard (Germany), Trinko, Rambus, NYMEX, eBay (US), Microsoft and IBM/T3 (both EU and US). Further topics covered include: IP protection for software, interoperability information and databases; industry-specific tailoring of IP; antitrust innovation market analysis; and the WTO law on the IP/antitrust interface.
Link to table of contents http://www.hartpub.co.uk/pdf/9781849463065.pdf
The Author
Dr Thorsten Käseberg, a lawyer and economist, was a case-handler at the European Commission’s Directorate-General for Competition between 2009 and 2011. He is currently working in the competition policy unit of the German Economics Ministry and was previously a lecturer in the Faculty of Law and Faculty of Economics at the Humboldt University Berlin, and a research assistant at the law firm Cleary Gottlieb Steen & Hamilton in Brussels.
June 2012 330pp Hbk 9781849463065 RSP: £75 / US$150
20% Discount Price: £60 / US$120
If you would like to place an order you can do so through the Hart Publishing website (links below). To receive the discount please mention ref: ‘CCB’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.
UK, EU and ROW: http://www.hartpub.co.uk/books/details.asp?isbn=9781849463065
US: http://www.hartpublishingusa.com/books/details.asp?isbn=9781849463065
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…
Random thoughts on life at law firms
Our most recent posts speak for themselves: both Nico and myself are currently quite absorbed by work and have struggled to find the time to write some sensible and substantive stuff here (we’ll be back to substance next week) nor to attend the various social competition law events taking place these days. [Query: if everyone is partying or writing blogs, who works here??!] . However, the “hecticness” of these past few days has spurred some random thoughts with regard to life at law firms (the fact that for the first time ever I have to alter my summer holiday plans because of work has also contributed to some intense reflection). Here they are, in the hope that they give rise to some debate: Read the rest of this entry »
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.
Self promotion
We like to self promote at chillin’competition.
For instance, you will have noticed from yesterday’s post that Alfonso likes to incidentally recall that he works on a pending case against a giant US corporation.
So I take my turn to self promote a little, with a recap on recent and forthcoming chillin’competition-related activities:
- I was in Helsinki with my friend Miguel Rato (Shearman & Sterling). We were invited to deliver a presentation at the 11th Annual Conference of the Association of European Competition Law Judges (AECLJ). With 60 judges from accross Europe in the room (including judges from Luxemburg), Richard Whish, Alexander Italianer and Nick Banasevic on the podium, this was a very challenging talk. I attach the presentation here: Slides – Petit & Rato – Abuse in Technology-Enabled Markets – 11th AECLJ Conference (14 06 12. A paper on “Abuse in Technology-Enabled Markets” is in the making;
- The registration process for the 2012/2013 edition of the LLM in Competition Law & Economics at the Brussels School of Competition is now opened. We have a new brochure in which you will find a number of changes. A teaser: F. Jenny will teach on abuse with JF. Bellis, Alfonso’s existence is now official and several ***** economists have joined;
- We have a GCLC lunch talk this Friday, on the Commission’s review on the rules on technology transfer agreements. Our speakers are Donncadh Woods (DG Competition), Frédéric Louis (WilmerHale) and Paul Lugard (Tilburg Institute for Law and Economics (TILEC) and ICC Commission on Competition);
- Ana Paula Martinez (Levy & Salomao) is the editor of a new, impressive volume entitled Temas Atuais de Direito da Concorrencia with written contributions (in English) from S. Salop, E. Elhauge, D. Geradin, Mariana Tavares de Araujo, Ian S. Forrester and Francisco Enrique González-Díaz. Here’s the leaflet and table of contents: GED_LS-#845180-v1-2012_Brazil_Competition_Book
- I was in Strasbourg yesterday to lecture on IP and competition law at the CEIPI and I will be in Bruges tomorrow to give a presentation at the 8th ELEA symposium. It is a very busy week, like last week… and hopefully unlike next week.
Some very personal views on the College of Europe
Every time we meet for the first time a reader of this blog, we get the question of how Nicolas and I met. Most people guess we studied together at the College of Europe, but that’s not the case. In fact, next weekend Nicolas will be celebrating the 10th anniversary of his promotion, whereas last weekend I celebrated the 5th anniversary of mine (I´m not used to telling the truth here; people often assume that I was there much longer ago –which doesn’t say much about my juvenile looks..- and I always fail to tell them wrong).
With all these current commemorations it seems like an appropriate moment to share some of our views on the College, an institution which elicits all kinds of reactions from different people [an illustration of those reactions: a recent book titled “Intimate Brussels” characterizes alumni of the College of Europe as the evil characters in Brussels and profiles them/us as a much hated secret society (!)]
This post is not entirely competition law-related and we don´t want to bore you, so click here if you’re interested on this long story:
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.
State aid conferences: that’s where the fun is!
(You’ll understand why we chose this pic if you keep on reading)
The European State Aid Law Institute held its 10th Experts’ Forum on new developments in European State aid law last Thursday and Friday.
I didn’t attend (as a means to reducing my current backlog I’m quitting conferences for a while) but some of my colleagues did. One of my bosses colleagues, José Luis Buendía, develivered a critical presentation on the State Aid Modernisation Initiative (“SAM”). Hopefully he will be able to turn it into a post for this blog once he manages to take some time off for this (he’s currently a bit busy representing the Spanish Fund for Orderly Bank Reestructuring, which will be borrowing 100.000 million euros from the EU rescue funds; see here or, actually, almost anywhere else).
I hear that there were other excellent sessions (e.g. there seems to be unanimous praise for Marc van der Woude’s presentation), but the session that will perhaps stick for longer in attendees minds was the Opinion Panel featuring Ryanair´s CEO (Michael O´Leary) and the Deputy Director General for State aid (Gert-Jan Koopman). As you may know, O´Leary has a reputation for being somewhat of an histrionic character, and he stood up to it.
The version of O´Leary’s CV included in the materials was already a bit different from the usual stuff (I promise I’m not making any of this up):
“Michael O´Leary has served as Ryanair CEO since 1993. Born in a stable in 1961, he was a boy genius, who excelled both academically and at sports. Having represented Ireland internationally at bog snorkelling and flower arranging, he graduated from Trinity College in Dublin as soon as they could get rid of him. He then became another boring KPMG accountant until divine inspiration sentenced him to a life of penal servitude in the airline business. Despite his best efforts, Ryanair is the World´s favorite airline, with 1,5000+ low fare routes accross 28 countries. (…) It is widely known that women find him irresistible“.
Some of the points he made in his speech that were most warmly received by the Commission were that (i) DG COMP has hired North-Korean economists to draft the guidelines on regional airports ; (ii) that no Commission official has ever set foot in Charleroi because they only fly on expensive tickets ; (iii) that he had woken up to fly at 6 a.m, something that the Deputy Director General does not even conceive has humanly possible; and (iv) that there are only two sorts of people that like the guidelines: flag carriers and Kim Jong Il. His last slide was actually of Kim Jong Il saying “These guidelines are fab!”.
I’m so sorry I missed it…
Nick Banasevic appointed head of the unit in charge of IT, Internet and consumer electronics
We have just learnt (via M-lex) that Nicholas Banasevic has been appointed Head of the Unit dealing with IT, internet and consumer electronics at DG COMP.
In previous posts we had already highlighted the importance of this appointment at a time when this particular unit is dealing with an immense workload which includes some of the most interesting ongoing cases in our discipline.
We hear that the competition for the job was very tough, and that says a lot both about DG COMP’s staff and about the newly appointed Head of Unit.
Nick is not only an excellent economist, a hard-working, nice and very very tall guy, but he’s also very reasonable, which means that he probably won’t mind about us commenting critically (for good or for bad) on his unit’s work.
Congrats and best of lucks to him!
Chillin'Competition 