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The fourth component of the Hoover Project on Commercializing Innovation studies market structure and performance in assessing how antitrust regimes can best promote competition. For example, recent actions in the European Union as well as the United States at the interface between antitrust and intellectual property have demonstrated the way flexible enforcement of antitrust can suffer the Achilles Heel of being too responsive to interest group lobbying, if not fashion. The purpose of antitrust laws is to protect against a large player dominating a market through unreasonable restraints on competition to cause higher prices or lower quality goods and services. But a company’s dominant market share is not, alone, anticompetitive. Sound theory and practice teaches regulators to instead focus on whether the company’s behavior causes actual economic harm to consumers. This requires regulators to consider tough questions of technology and economics.
Selected works on Antitrust:
Articles The FTC, IP, and SSOs: Government Hold-up Replacing Private Coordination, 8 J.C.L. & Econ. 1 (2012), Richard A. Epstein, F. Scott Kieff, and Daniel F. Spulber. Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents, University of Chicago Law & Economics Olin Working Paper No. 527, Richard A. Epstein and F. Scott Kieff. Innovation and the Limits of Antitrust, 6 Journal of Competition Law & Economics 153 (2010). Geoffrey A. Manne and Joshua D. Wright. The FTC’s Misguided Rationale for the Use of Section 5 in Sherman Act Cases, 2 CPI Antitrust Chronicle (2010). Geoffrey A. Manne. Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup, Journal of Competition Law and Economics (forthcoming), Bruce H. Kobayashi and Joshua D. Wright. Why the Supreme Court was Correct to Deny Certiorari in FTC v. Rambus, George Mason Law & Economics Research Paper No. 09-14, Joshua D. Wright. Quanta v. LG Electronics: Frustrating Patent Deals by Taking Contracting Options off the Table?, 2007/2008 Cato Sup. Ct. Rev 315 (2008), F. Scott Kieff. Missed Opportunities in Independent Ink, 2006 Cato Sup. Ct. Rev. 333 (2006), Joshua D. Wright Coordination, Property & Intellectual Property: An Unconventional Approach to Anticompetitive Effects & Downstream Access,56 Emory Law Journal 327 (2006). F Scott Kieff. IP Transactions: On the Theory & Practice of Commercializing Innovation, 42 Houston Law Review 727 (2005), F. Scott Kieff. Hot Docs vs. Cold Economics: The Use and Misuse of Business Documents in Antitrust Enforcement and Adjudication, 47 Arizona Law Review 609 (2005) Geoffrey A. Manne and E. Marcellus Williamson. The Basics Matter: At the Periphery of Intellectual Property, 73 George Washington Law Review 174 (2004), F. Scott Kieff and Troy A. Paredes. Also published in Developments in the Economics of Copyright: Research and Analysis (Lisa N. Takeyama et al. eds., Edward Elgar) (2005).
Books
Other Publications The FTC's Proposal for Regulating IP through SSOs Would Replace Private Coordination with Government Hold-Up, Submitted in Response to the FTC’s Request for Comments and Announcement of Workshop on Standard--Setting Issues, Project No. P111204, Aug. 5, 2011. Richard A. Epstein, F. Scott Kieff, and Daniel F. Spulber. Comment on Intellectual Property, Concentration and the Limits of Antitrust in the Biotech Seed Industry, filed with the Department of Justice Antitrust Division on December 31, 2009, as "Comments Regarding Agriculture and Antitrust Enforcement Issues in Our 21st Century Economy" in response to the DOJ/USDA request for public comments for the agencies' joint workshops on antitrust issues in the agricultural sector. F. Scott Kieff, Geoffrey A. Manne, Michael E. Sykuta, Joshua D. Wright. The Return of "Big is Bad", The Deal Magazine (May 26, 2009) Keith N. Hylton, Geoffrey A. Manne, and Joshua D. Wright. US Antitrust Becomes More European, Forbes.com (May 18, 2009) Keith N. Hylton, Geoffrey A. Manne, and Joshua D. Wright. Microsoft’s European Experience Troubling for U.S. Companies, Opinion, San Jose Mercury News, March 15, 2007, at 12A, Stephen H. Haber, F. Scott Kieff, and Troy A. Paredes. A Keiretsu Approach to Patents, Intellectual Asset Management, Feb./Mar. 2007, at 51, F. Scott Kieff. Public Choice, Patents, and the FTC: Comments on the Commission’s October 2003 Report on the Interface Between Patents and Antitrust, 5 Engage 84 (2004), F. Scott Kieff.
Presentations
Shorter Works
Testimony
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News
On September 10, 2012, President Barack Obama announced his intent to nominate F. Scott Kieff as a Member of the United States International Trade Commission and Joshua D. Wright as a Commissioner of the Federal Trade Commission. On September 11, 2012, President Obama formally nominated Kieff and Wright; and the Senate confirmed Wright on January 1, 2013. Of the twelve people who have been members of our Project's research team, three have been nominated by a United States President to serve as a member of one of the independent government commisions focusing on the economy. In 2008, Troy A. Paredes, one of the Project's three founding investigators, was nominated by President George W. Bush as a Member of the Securities and Exchange Commission, a post in which he presently serves. On January 3, 2013, Kieff's nomination, along with the others pending at the end of the Senate's term, were Returned to the President under the provisions of Senate Rule XXXI, paragraph 6 of the Standing Rules of the Senate. On February 4, 2013, Kieff was re-nominated by President Obama.
On April 12, 2013 Richard A. Epstein debated the patent system with Seventh Circuit Judge Richard Posner at PatCon 3. Professor Epstein and Judge Posner were both featured speakers at the event, and the debate was covered at Patently-O and Written Description.
On October 24, 2012, Richard A. Epstein participated in a Federalist Society podcast on the topic "Patent Rights: A Spark or Hindrance for the Economy?"
Stephen H. Haber and Aldo Musacchio were awarded the 2012 Manuel Espinosa Yglesias Prize for their paper, "These are the 'Good Old Days': Foreign Entry and the Mexican Banking System." The juried prize was awarded by the Centro de Estudios Espinosa Yglesias (CEEY) and includes both a monetary award and publication of the paper by the CEEY.
" Patents are not the enemy", an article by Rod Cooper, Richard A. Epstein, and Stephen H. Haber, was published in the Chicago Tribune on August 15, 2012. (Free registration may be required to view the article online.)
Defining Ideas has published Patently Bad Policy, an essay by F. Scott Kieff on two upcoming Supreme Court patent cases, Hyatt v. Kappos and Mayo v. Prometheus.
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