Blog o’ Blogs August 2015

August 2015, Volume 5, Number 8
We start with two papers by Commissioner Wright and Judge Ginsburg on Canada’s and Japan’s proposed intellectual property guidelines, move on to a significant decision on pay-TV, then analyze a variety of court decisions, and also hear (twice) from the FTC on mergers. We finish with a little disruption.
Comment of Commissioner Joshua D. Wright and Judge Douglas H. Ginsburg to the Canadian Competition Bureau
Comment regarding the Canadian Competition Bureau’s Draft Updated Intellectual Property Enforcement Guidelines

Comment of Commissioner Joshua D. Wright and Judge Douglas H. Ginsburg to the Japan Fair Trade Commission
Comment Regarding The Japan Fair Trade Commission’s Draft Partial Amendment to the Guidelines for the Use of Intellectual Property Under the Antimonopoly Act.

Copyright reform through competition law? The Commission’s statement of objections in the pay TV investigation

If the Commission goes ahead with the theories sketched in the press release, it would be redefining, via Article 101 TFEU enforcement, the scope of the right of communication to the public and the reach of the exhaustion doctrine.

Pablo Ibanez Colomo (Chillin’Competition)

The European Commission’s Battle Over Pay-TV Services: Can Segmenting the EU Market Be Justified?
At the heart of this case lies the single market imperative; the elimination of obstacles to free movement within the internal market.
Andreas Stephan (Competition Policy Blog)
EU Judgment Confirms Potential of High Cartel Fines for Vertically Integrated Multinational Companies
The judgment stands as a striking example of the extra-territorial application of the EU competition rules to the calculation of fines.
Peter Citron (AntitrustConnect Blog)
Should There Be an Antitrust Whistleblower Statute?

The Antitrust Division is as protective of the leniency program as a Momma Bear is of her cubs.

Robert Connolly (Cartel Capers)

A fine balance: Toward efficient merger review
Of course, the principal means of reducing the burden of a Second Request is to negotiate with staff to modify the terms, and we found that this continues to be the most effective way to tailor the Second Request.
Debbie Feinstein (FTC’s Competition Matters)
Notable trends in merger review: inside the HSR Annual Report
Merger filings are up and approaching pre-recession levels.
Nathan Hawthorne & Kelly Signs (FTC’s Competition Matters)
Judgment for Drug Companies Unlikely the End of the Road in Nexium Case
The jury’s finding that the AstraZeneca/Ranbaxy agreement was unreasonably anticompetitive did not establish the existence of an antitrust violation, warranting requested permanent injunctive relief. 
Jeffrey May (AntitrustConnect Blog)
English Cartel Damages Claim Takes an Extraordinary Turn
Looking to the future, it may be that one of the lasting legacies from this case will be a shift in claimant tactics towards more use of the specialist tribunal, the Competition Appeals Tribunal or “CAT,” rather than the more generalist High Court.
Richard Pike (Antitrust Today)
ECJ’s Judgment of today in case C-170/13, Huawei v ZTE

I’m not sure that the Court has responded to everything in the manner wished by the referring Court (notably, what’s FRAND remains unclear), but I’m pretty sure that it is a strong endorsement to the Commission.

Alfonso Lamadrid (Chillin’Competition)

Advocate general deals another blow to economic assessment of rebates
It is never a good sign when an advocate general’s opinion warns the European Court of Justice (ECJ) not to be swayed by “ephemeral trends” or the “Zeitgeist” of economic analysis, but instead to stick to the “legal foundations on which the prohibition of abuse of a dominant position rests in EU law”.
Bill Batchelor (Kluwer Competition Law Blog)
Reverse Payment Claims Authorized Under State Law: Five Lessons from California’s In re Cipro Decision
Moreover, by staking out an interpretation of state antitrust law that goes beyond Actavis in minimizing the importance of potentially valid patents, the decision may be superseded by federal patent law developments that contradict the California Supreme Court’s understanding of the requirements of patent law.
Darryl Wade Anderson, Michael Lee Koon, & Peter H. Mason (AntitrustConnect Blog)
Facing disruption
While regulators have a lot to prepare themselves for, in markets with as much dynamism as those we see today, perhaps buyer power will present the faster driving forces for change. 
Neha Georgie (CompetitionMarkets)
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