This paper – which you can find here – looks into the antitrust treatment of joint research and development agreements (“joint R&D”) under both EU and US law.
The paper begins by providing (yet another) overview of the literature on competition and innovation. The basic conclusion is that it is uncertain whether competition promotes or detracts from innovation, but we all know this by now.
Informed by these observations, the paper then looks at the EU and US treatment of joint R&D agreements. In the US, after a few old cases, joint R&D was subject to its own antitrust regime by the National Cooperation Research (and Production) Act in 1984 – which applies a rule of reason for innovation markets, and precludes treble damages if the agreement was notified to the competition agencies. In effect, the author argues, this created a safe harbour for R&D collaborations. These developments led to the adoption of the R&D Block Exemption at about the same time in the EU, and since then the development of the regimes applicable to R&D has taken place in tandem in the US and the EU.
In short, the author thinks that joint R&D agreements are treated similarly on both sides of the Atlantic – and, more importantly, that this treatment is very lenient. While the legal approach may reveal a bias towards a Schumpeterian approach to innovation and competition – reflecting the idea that the absence of competition can promote competition -, the author concludes that difficulties in proving anti-competitive effects in practice may have proved a greater incentive to the adoption of this lenient approach. Ultimately, the author advocates for more stringent enforcement in selected sectors, while still considering that the lenient approach should broadly apply to R&D agreements.