EU Competition Law and US Antitrust Law
New Horizons in Competition Law and Economics series
Chapter 4: Innovation analysis in practice
4.1 INTRODUCTION This chapter will present and analyse cases in which potential negative effects relating to competition in the innovation process have been addressed and assessed. Such analysis has been most widely performed in the field of merger control, but the case presentation also comprises some joint ventures, agreements relating to intellectual property (such as acquisition and pooling of patents) and abuses of dominance. In spite of the predominance of merger cases amongst the analysed cases, it should be possible, as former FTC officials Gilbert and Sunshine have suggested,1 to draw general conclusions applicable also to other fields. The chapter focuses on the delineation of markets; when, how and what potential anti-competitive effects and pro-competitive benefits are identified on these markets; and finally what remedies are typically being used to overcome any unacceptable effects. The practical handling by the authorities of these specific issues will be presented and briefly analysed in this chapter. A deeper and more generally applicable analysis is presented in the following chapters. 4.2 INNOVATION ANALYSIS IN VARIOUS CONTEXTS At the outset it can be noted that few cases concern themselves exclusively with innovation effects. Whether dealing with mergers, joint ventures, technology transfers or other practices, competition analysis of various kinds is frequently brought into play. Some cases do relate more explicitly to the innovation process and the terms and conditions for future competition in that process. But the conditions for innovation may be relevant also where the overall analysis addresses competition between current or future...