Sandra Marco Colino, Niamh Dunne, Knut Fournier, Sofia Pais, Derek Ritzmann ‘The Lundbeck case and the Concept of Potential Competition’ (2017) Concurrences n° 2-2017

This paper – which can be found here – contains the reflections of a number of legal scholars about European decisions regarding reverse settlement payments (also known as “pay for delay” agreements). Reverse settlement payments consist of payments by the owner of IP rights to entities that are challenging such rights in court – and they are particularly important in the pharmaceutical sector, where producers of generic drugs may challenge the IP of branded drugs, and the owner of the drug may pay the generics’ company not to challenge his/her/its IP (and, thus, not to enter the market). As noted in the introduction: “Schemes of this nature are bound to set off alarm bells in the mind of the antitrust erudite. Delaying the entry of would-be competitors would almost certainly entail pushing back the benefits typically derived from a competitive market, the very ones that competition law was designed to protect. And yet the fact remains that, when reverse payment agreements are entered…

Unwired v Huawei [2017] EWHC 711 (Pat)

This judgment – which you can find here – is a recent UK court decision on FRAND terms. The factual background to this decision is convoluted (including five “technical” trials relating to the validity and infringement/essentiality of the relevant patents, which preceded the present trial regarding all competition law and FRAND issues), but the situation can be summarised shortly. Unwired Planet is a company that owns a number of worldwide patents, including many of the foundational technologies that allow mobile devices to connect to the Internet (4G, 3G and the like) – most of the relevant portfolio in this case was acquired from Ericsson. A number of these patents are essential to the relevant technical standards, and are thus deemed Standards Essential Patents (“SEPs”). The process of standardisation involves holders of patents which are essential to an international telecommunications standard declaring them to be essential to the relevant standards body –  in this case, the European  Telecommunications Standards Institute (“ETSI”). Standard…

Alison Jones ‘ Antitrust Appraisal of Vertical Agreements in the ASEAN Economic Community’ in Ong (ed.) The Regionalisation of Competition Law and Policy within the ASEAN Economic Community (2018, CUP)

This paper – which you can find here – looks at the different approaches to vertical agreements across ASEAN. The paper draws on practice and experience in the US and EU to consider whether, and if so how, the approach to vertical agreements under the competition law systems of ASEAN countries should be changed in order to ensure a more coherent policy across the region. Following an introduction, Section 2 examines how divergent national policies towards vertical agreements in ASEAN might be damaging competition, efficiency and market integration, and why greater convergence around a harmonised framework might be desirable. It begins by reviewing the outlines of the ASEAN single market and by assessing the role of competition law for its development. It devotes particular attention to the treatment of vertical agreements, which are subject to a spectrum of radically different approaches across the region – from only vertical agreements by dominant companies being subject to competition law in Singapore and…

Wouter Wils ‘Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future’ (2017) World Competition 40(1) 3

This paper – which can be found here – provides a short history of private enforcement of EU antitrust law and of its relationship with public enforcement. The paper is structured as follows: Chapter 2 looks at the situation before 2003, a period during which courts established that the Treaty’s competition provisions have direct effect and create rights for individuals, even as public enforcement predominated. Chapter 3 reviews the changes brought about by Regulation 1/2003, that allowed NCAs and national courts to fully implement competition law (up until then, the system required exceptions under Art. 101(3), which concerns efficiencies, to be approved by the European Commission). This Regulation contained a number of provisions that: (i) in line with Masterfoods, obliged NCAs and national courts to follow prior Commission decisions on antitrust infringements; and (ii) set up mechanisms for cooperation between the European Commission, NCAs and national courts concerning the private enforcement of antitrust rules. However, Regulation 1/2003 ultimately led to increased…

Alison Jones and William E. Kovacic ‘Identifying Anticompetitive Agreements in the United States and the European Union – Developing a Coherent Antitrust Analytical Framework’ (2017) Antitrust Bulletin 62(2) 254

This is a very substantial paper on the appropriate analytical framework for identifying anticompetitive agreements . It can be found here. The paper focuses on how the debate on rules and standards, and on the balance of Type I and Type II errors, affects the analytical framework for identifying infringing agreements in the US and EU. From their standpoint, these debates have been influential in discussions about how to identify anticompetitive unilateral practices and mergers, but have not been relevant for similar discussions regarding horizontal agreements. Also, from their point of view: “the question of how agreements are to be analysed under both the US and the EU jurisprudence is also unduly opaque; it is frequently difficult to ascertain whether agreements, including joint venture and other horizontal collaboration and distribution agreements, are compatible with the law. In particular, confusion about the role and scope of per se rules, the role and scope of ancillary restraint doctrines, and how competing anti- and…

Bjorn Lundqvist ‘Joint Research and Development Collaborations Under Competition Law, with a Layman’s Economic Viewpoint’ (2017) Stockholm University Research Paper No. 3

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…

Patrick Actis Perinetto and Natalia Latronico ‘The Bitter Medicine: Competition Law and Parallel Trade in the Pharmaceutical Sector’ (2017) World Competition 40(10 93

This article – which you can find here – is a rather straightforward piece on restrictions on parallel trade of pharmaceutical products as a competition law infringement. It begins by analysing the most relevant features of parallel trade in the pharmaceutical sector. In Europe, a prohibition of restrictions on cross-border trade under EU competition law is coupled with the fact that the main purchaser of pharmaceuticals are the member states, which are free to adopt their own approach with respect to pricing and public reimbursement. Given the resulting price differentials between member states, parallel trade occurs as wholesalers take advantage of the arbitrage possibilities by exporting products from a low-price country to a high-price one and pocketing the margins. Having established this, the paper moves into reviewing the main strategies used by companies to counter such parallel trade. Such practices include refusal to deal/prohibition of exports, vertical integration, quota systems and dual pricing schemes. The paper identifies each strategy in turn,…

Ariel Ezrachi ‘The Ripple Effects of Online Marketplace Bans’ (2017) World Competition 40(1) 47

This paper – which you can find here – assesses the economic and legal implications of online marketplace bans in order to determine what treatment they should be subject to under competition law. The discussion opens in Chapter 2 with a review of different types of online marketplaces. Online marketplaces bring together large numbers of sellers and buyers, and in doing so facilitate dynamic competition, both in relation to greater inter-brand competition and in relation to intra-brand competition. Nonetheless, there are various types of such marketplaces, which could be distinguished on the basis of their particular characteristics. These include: (a) whether online marketplaces are pure or hybrid intermediaries (pure intermediaries are merely platforms for buyers and sellers, while hybrid intermediaries provide a sales platform but also act as retailers on their own platform); (b) open or closed marketplaces (any seller can gain access to an open marketplace, while closed marketplaces impose access restrictions); (iii) the type and quality of the interface on…

Pedro Caro de Sousa ‘Free Movement and Competition in the European Market for Pharmaceuticals’ in in Pablo Figueroa and Alejandro Guerrero Perez (eds.) EU Competition and Trade Law in the Pharmaceutical Sector (Elgar), Chapter 13

This is a paper of mine – which you can find here – that looks at the interaction of free movement and competition law as regards the pharma sector in Europe. Very few industries are as profoundly influenced by regulation as the pharmaceutical industry. All aspects of the life-cycle of new drugs are regulated, from patent application, to marketing approval, commercial exploitation, patent expiration and competition with generics. The nature of demand for drugs, the identity of drugs brought to market, and the nature of competition in the drug market over time are all shaped by regulation. Throughout much of the world, administrative regulation, rather than competition policy, dominates efforts to afford consumers and governments adequate access to affordable drugs. As a result, the nature of competition in this market is sui generis. A significant number of infringements to competition law in this sphere across the world are concerned with practices that seek to take advantage of or manipulate the…

Thibault Schrepel ‘A New Structured Rule of Reason Approach For High-Tech Markets’

This paper attacks, the assumption that a number of practices in high tech markets should be presumed to be legal. It was published in the Suffolk University Law Review, and can be found here. It seeks to build on Easterbrook’s framework for designing efficient antitrust rules, and to develop a structured rule of reason framework that could apply to the new economy.  It does this by: (i)  distinguishing between per se rules and rule of reason standards; (ii)  reviewing the arguments for and against the adoption of per se rules, in order to explain why per se rules are not appropriate for high tech markets; (iii) lastly, developing an approach that replaces per se rules with an “administrable” structured rule of reason applicable in innovation and high tech markets whenever “the practice has not proven to be pro-competitive in every case”. The paper provides a decent overview of the discussion about rules and standards in antitrust. Further, it makes one…