Edited by Paul Nihoul and Pieter Van Cleynenbreugel
Chapter 4: Protecting innovation from unfair practices
A considerable share of the unilateral practices that have attracted antitrust enforcer attention in the EU and US has only minor exclusionary aspects. Instead, concerns about innovation and consumer welfare being harmed appear to arise significantly under other theories of harm, such as distortion of rewards for innovation. When concerns based on exclusion from the market are absent or do not meet the general standards for exclusionary conduct (e.g. exclusionary abuses or monopolization), practices need to be addressed using other methods (e.g. as forms of exploitative abuses or unfair methods of competition). Examples of reliance on unfairness powers to address innovation concerns include investigations into alleged abuses of standards-essential patents and grant-backs, or cross-licensing imposed on licensees. Some investigations into internet platforms (e.g. Google investigations in the EU and US), essentially appear to concern alleged unfairness of conditions imposed on other firms or consumer deception, rather than pure theories of exclusion. While allowing certain potentially problematic practices beyond exclusionary conduct to be remedied, the exercise of such unfairness powers raises questions about the identity, limits and general standards of antitrust. This chapter examines the theories exploring which innovation and ultimately consumer welfare may be harmed absent exclusion, and the antitrust standards under which such concerns could be addressed in a way amenable to innovation and consumer welfare.
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