Silicon Valley Antitrust v.5
Hanno Kaiser, University of California, Berkeley, School of Law, Fall 2015 Friday 8 - 9:50 am, Room 170
Note that this is an evolving syllabus, as we will discuss key issues of technology antitrust using current cases and materials.
Key Concepts
See the Key Concepts Page
Class 1: Antitrust, technology, and criminal cartels (8/28/15)
Topics for discussion
- A roadmap for this course
The goals of antitrust and “competition on the merits”
- Economic goals
- Non-economic goals
How firms subvert the competition mandate (“Decrease output to increase profit”)
- Collusion (“too little competition”)
- Exclusion (“unfair competition”)
We will spend a lot of time with unsettled and difficult cases. But before we go there, let’s establish an uncontroversial baseline: Criminal cartel conduct
- Price fixing, market allocation, bid rigging
- DOJ criminal enforcement policy
- How cartels work: Creating artificial scarcity to get a bigger slice of a smaller (and more expensive) pie
Required Reading
Optional
Class 2: The antitrust toolkit: Rule of reason, per se categories, ancillary restraints (9/4/15)
Topics for discussion
Required reading
- United States v. Adobe Systems, Inc., Apple Inc., Google Inc., Intel Corporation, Intuit, Inc., and Pixar (2010) Complaint.
- Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1 (1979). Excerpts Landmark case
Optional reading
Class 3: Horizontal agreements: U.S. v. Apple, Inc., 2d. Cir., June 30, 2015 (eBooks) Part 1 (9/11/15)
Topics for discussion
Required reading
Optional reading
Class 4: Horizontal agreements: U.S. v. Apple, Inc., 2d. Cir., June 30, 2015 (eBooks) Part 2 (9/18/15)
Topics for discussion
- Disruption via de novo entry as per se illegal conduct?
- Platform competition and price effects: How do you launch a multi-stakeholder platform (e.g., operating system, gaming console, app store, etc.) in the real world?
- Is this a case about “trade ebooks” or about ebook reader platforms? How does that affect the scope of the rule of reason analysis?
- Vertical interaction with horizontal agreements: the line between “hub and spoke” conspiracies and parallel vertical agreements
- Analysis of the court’s application of the per se and rule of reason framework.
Required reading
Class 5: United States v. Microsoft Part 1: Technology markets, market definition (9/25/15)
Topics for discussion
Required reading
Optional reading/viewing
Class 6: United States v. Microsoft Part 2: Network effects and entry barriers, exclusionary conduct, interoperability layers, and defensive leveraging (10/2/15)
Topics for discussion
- Multi-sided platforms and indirect network effects as barriers to entry (“applications barrier to entry”)
The U.S. v. Microsoft case is about Microsoft’s efforts to protect the application barrier to entry against erosion by interoperability layers
- If the same applications ran on different OSs (via Java, for example), then the OSs would have to compete only on the basis of “genuine OS features” and OS price.
Microsoft’s exclusionary conduct serves to “reduce usage share” of and “deny critical mass” to interoperability layers
- OEM agreements
- Commingled code
- “Embrace, extend, extinguish”
- Causation
- The “biodiversity” approach to ecosystem industries
- Rule of reason for platform markets
- Trial strategy: facts and law, specifics and principles
Required reading
Optional reading
Class 7: “Predatory innovation:” Creating Strategic Incompatibilities (Part 1) (10/9/15)
Topics for discussion
- Many peripheral products are designed to work with someone else’s system. Commonly the system provider has its own peripherals and competes with third party peripheral product vendors. What happens if the system vendor makes its system icompatible with third party peripherals?
- Product design changes that exclude vendors of (no longer) compatible products are a common business strategy and a staple of technology antitrust litigation.
- We will address the treatment of “predatory innovation” claims by looking at four of the classic cases/vignettes.
Required reading
- In re Apple iTunes Antitrust Litigation, 796 F.Supp.2d 1137 (N.D. Cal. 2011). Exerpts. Jury verdict. Drawing.
- California Computer Products, Inc. v. Int'l Bus. Machines Corp., 613 F.2d 727 (9th Cir. 1979). Excerpts. Drawing.
- Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d, 1295 (D. Utah 1999). Excerpts.
- Transamerica Computer Co., Inc. v. IBM Corp. (In re IBM Peripheral EDP Devices Antitrust Litig.) 481 F.Supp. 965 (N.D. Cal. 1979). Excerpts.
Optional reading
- Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979)
Class 8: “Predatory innovation:” Product Hopping and related conduct in pharmaceutical cases (Part 2) (10/23/15)
Topics for discussion
Innovation in the pharmaceutical industry. The interplay of patent and antitrust laws and the special regime created by the Hatch-Waxman Act
- How the FDA process works: NDAs, ANDAs, the Orange Book, clinical trials
Incentives of leaders (brand) and followers (generics) in the pharmaceutical space
- Costs and probabilities of bringing a drug to market
- Insurers, doctors, patients, and pharmacies: the inherent agency problems in selection and distribution of pharmaceutical products
- “Pay for delay” as the classic Hatch-Waxman Act problem
- “Product hopping” as a form of predatory innovation
The impact of pharmaceutical antitrust cases beyond the pharmaceutical context
- The future of the “scope of the patent” test after FTC v. Actavis
- Hard- and soft switches after NY v. Actavis. Does everyone have to keep the “old” product on the market for a while now?
Required reading
Optional reading
Class 9: Antitrust and Standard Setting (10/30/15)
Topics for discussion
The “standard setting exception” to limiting technology competition and why the rule of reason applies to standard setting organizations (SSOs)
- Benefits of standards
- The “market power by-product of standard setting”: standard-essential patents (“SEP”)
- Market power from patents v. market power from SSO-agreements regarding patents
- The risk of SEP hold-up
SSO antitrust safeguards and, in the event of failure, grounds for antitrust claims
- Elimination of bias in the standard setting process
- Disclosure of patents
- Licensing of patents
Required reading
Optional reading
Class 10: The Smartphone Wars: With a special focus on Europe and China (11/06/15)
Topics for discussion
Required reading
Optional reading
Classes 11 and 12: Open and Closed Systems: Tying and Aftermarkets (11/13/15)
Topics for discussion
Required reading
Optional reading
Classes 13 and 14: Putting it all together (11/20/15)
Topics for discussion
- Unilateral conduct
- Network effects as entry barriers
- Single brand aftermarkets
- Standard essential patents
- Exclusive dealing (single product)
- Predatory innovation (single product)
- Tying (multiple products)
- Evading SSO safeguards
- Agreements in restraint of trade
- Agreements v. conscious parallelism
- Vertical and horizontal agreements; upstream and downstream
- Modes of analysis: ROR (AE > PE) and per se categories
- Getting out of the per se box (ancillary restraints; lack of judicial experience)
- Exam technique
- Read the question
- Read the hypo
- Upstream/downstream drawing; clearly identify the markets at issue
- Outline the mandatory elements of the offense
- Locate the "issues" within the structure of the outline
- Write your answer, using the outline topics as headings
- Claim --> "because" --> Evidence
- Exhaust the hypothetical
- Highlight every fact that you have used
- Find a place for what's left over
- Finish
Required reading
Recommended reading
Recommended resources (not mandatory)
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