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.
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.
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)
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)
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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