(Note: In December 2012, the Department of Justice and the Federal Trade Commission held a Hearing on the impact of patent assertion entities (PAEs) on innovation and competition and the implications for antitrust enforcement policy. The Agencies then issued a Request for Public Comments on the topic of the Hearing. In response, on April 5th, Richard Wolfram submitted the following comment to the DOJ and FTC, adapted and shortened here for Antitrust Connect. The full Public Comment – one of almost 70 public comments submitted to the Agencies — is available at http://www.ftc.gov/os/comments/pae/pae-0066.pdf or from the author.)
This comment is submitted in my personal capacity and d [...]
I often feel a certain deflation after the Supreme Court decides an antitrust case. After watching a case for months, prognosticating about it with other antitrusters, reading umpteen blog posts, reading the briefs if you’re into it and even some amici briefs if you’re really into it, the Court then rules one way or the other, and usually tailors its opinion pretty narrowly, breaking no meaningfully new ground. I suppose many will have that feeling about Tuesday’s decision in Federal Trade Commission v. Phoebe Putney Mem. Hosp. Sys., and some are already saying that Justice Sotomayor’s brief opinion for a unanimous Court is just a narrow application of garden variety state action [...]
In Consolidation in Health Care Markets: A Review of the Literature, authors David Balto and James Kovacs in a study funded by and submitted to the Robert Woods Johnson Foundation discuss the recent literature concerning consolidation across various health care markets.
The paper focuses on consolidation of hospital, provider, and health insurance markets with the goal of understanding the impact consolidation has on health care prices, quality of care, and overall costs. The paper seeks to provide an overview of the key research and present findings in different areas of healthcare to facilitate further investigation.
The authors find that while there is consolidation across many heal [...]
Keep an eye out for the Court’s decision on certiorari in McCray v. Fidelity Nat’l Ins. Co., 682 F.3d 229 (3rd Cir. 2012). I have my fingers crossed that it may be the case in which the Court finally does the right thing with the accursed “filed rate doctrine.” I filed a brief in support of certiorari in the case on behalf of myself, eighteen leading antitrust scholars, and the American Antitrust Institute.
Pretty much everybody who is not a regulated industry is in agreement about the FRD, an old rule now commonly associated with Louis Brandeis’s famous opinion in Keogh v. Chicago & Nw. Ry. Co., 260 U.S. 156 (1922). Specifically, they all pretty much agree that the FRD is ba [...]
One of the critical obstacles to our innovation economy are patent trolls or Patent Assertion Entities (“PAE”) which acquire patents simply to bring patent litigation and effectively tax innovation. PAEs exploit numerous problems in our legal system including the expense and uncertainty of patent litigation, the excessive granting of patents in the high-tech space, the ambiguity of abstraction surrounding the claims of many high-tech patents, and the anticompetitive pricing power that comes from aggregating patents in an industry where market definition is especially difficult. PAEs are costing the economy over $29 billion annually and creating barriers to the innovation that is critical [...]
The press is reporting that FairSearch and the other Google opponents have trotted down Pennsylvania Avenue to the Department of Justice Antitrust Division asking them to take over the antitrust investigation of search now that the Federal Trade Commission is poised to close its investigation.
Although it’s Christmas time and we all like Christmas shopping, this is the wrong type of shopping: forum shopping. This last-ditch effort by Google’s competitors doesn’t make sense and is bad for innovation and consumers. Fortunately there is no way it will work.
In the United States we have the mixed blessing of having two antitrust agencies: the Federal Trade Commission and the Antitrust Division o [...]
Online marketplace eBay, Inc. has been charged by the Department of Justice with entering into an agreement with business and financial management solutions provider Intuit, Inc. not to hire each other’s employees. On Friday, the Justice Department filed an 11-page civil antitrust complaint against eBay in the federal district court in San Jose, California.
The complaint details a naked no-solicitation and no-hire agreement reached at the highest levels of the companies. Meg Whitman, then eBay’s CEO, and Scott Cook, Intuit’s founder and executive committee chair, were allegedly involved in forming, monitoring, and enforcing the pact.
According to the government, the agreement barred e [...]
The press is on fire with dozens of stories that the FTC appears poised to sue Google for alleged anticompetitive conduct in search (and the possibility that any case may be settled). There certainly is no lack of well-paid advocates for aggrieved rivals ready to spin claims that Google is the next Microsoft and that FTC action is necessary to open the market to competition. But while these advocates are making a lot of noise, consumers are almost entirely silent. Indeed, unlike almost all of the recent antitrust wars such as the AT&T/T-Mobile and Ticketmaster/LiveNation mergers, or even the DOJ case against Microsoft, in which there was a groundswell of consumer opposition that spurred the [...]
Over the last decade, the patent landscape has been dramatically altered by the rise of entities whose business model is to acquire significant patent portfolios and aggressively pursue license fees from businesses selling products that may infringe on some of those patents. Such companies are known as “non-practicing entities” (NPEs) or “patent assertion entities” (or, in some circles, “patent trolls”) because they do not manufacture or sell any products to consumers. The U.S. antitrust agencies are considering how the antitrust laws should apply to NPEs, and one news organization has reported that the agencies intend to hold a workshop later this year to address the issue.
Some of the most high-profile competitive disputes involve both intellectual property (IP) and antitrust law. Prudent IP lawyers know the value of securing antitrust advice, especially when dealing with potential transactions or potential litigation. IP lawyers should seek out the advice of their antitrust colleagues in order to avoid antitrust pitfalls in the following 12 circumstances: