Barak Richman (Duke) and James Blumstein (Vanderbilt) have an interesting exchange at PENNumbra, University of Pennsylvania School of Law’s online forum for debate surrounding scholarship in the U. Penn. L. Rev.  Here’s the abstract from Professor Richman’s article…

Read the full piece here. 

FTC economist Malcolm Coate has posted Unilateral Effects Under the Guidelines: Models, Merits and Merger Policy to SSRN.

Read the full piece here.

I’ve avoided saying anything at all about the bailout because (1) I’m not an expert on banking, finance, etc. and (2) events are moving so fast I can’t keep up with the latest proposal. Nonetheless, since the bailout bill has just failed, this might be an opportune time to consider an alternative to the plan the House just rejected. The most intriguing alternative plan I’ve seen is that set forth by Havard Law’s Lucian Bebchuk in this paper (which was produced in record time!).

Read the full piece here.

From an excellent short article by Dan McInnis (Akin Gump) on the potential impact of the election on cartel policy in Global Competition Policy…

Read the full piece here. 

There is an interesting profile on Intel in the WSJ.   While the profile focuses on some of the technological and competitive challenges facing Intel and CEO Paul Otellini, the CEO mentions the proliferation of antitrust laws across the globe, and the uncertainty associated with regulatory costs in such an environment, as one of the major potential impediments facing the company…

Read the full piece here. 

Over and over during the last week we’ve been told that unless Congress, the Treasury, and the Fed take “bold action,” credit markets will freeze, equity values will plummet, small businesses and homeowners will be wiped out, and, ultimately, the entire economy will crash. Such pronouncements are issued boldly, with a sort of Gnostic certainty, a little sadness for dramatic effect, and only minor caveats and qualifications.

Read the full piece here.

Abstract

The Supreme Court’s unanimous decision in Quanta v. LG Electronics may make it significantly more difficult to structure transactions involving patents. While this decision does make a group of players into winners in the immediate term for existing patent deals (this group includes any customer who, like Quanta, buys patented parts without buying a patent license), almost everyone is likely to come out a loser going forward.

The Court in Quanta decided that a patent license that LG Electronics sold only to Intel – and explicitly limited to exclude Intel’s customers, like Quanta, and priced to reflect these modest ambitions – would be treated by the Court as extending permission under the patent to those Intel customers. The legal “hook” on which the Court hung its decision is the patent law doctrine called “first sale” or “exhaustion.”

The Quanta decision is likely to have a serious negative effect on the nuts and bolts of patent licensing agreements. On one reading, it stands for little more than the unremarkable proposition that the actual patent license contract at issue was just badly written. But that would be a simple matter of applying state contract law to the underlying facts of the contract – not the type of issue that typically gains the Supreme Court’s attention. So the real motivating force behind the Court’s decision to take the case is probably something else. The extensive briefing and commentary, as well as the opinion’s colorful dicta, all suggest that the true import of the case is the way it speaks about what patent contracting can be done – as a matter of Court-created policy for federal patent law.

If this view of Quanta is correct, then the decision may be remarkably important in several respects. It may greatly frustrate the ability of commercial parties to strike deals over patents. It may also stand as an example of a seemingly conservative Court acting in direct contravention of clear congressional action.

The public comment period has closed and the N-Data settlement has been approved by a vote of 3-1 with Chairman Kovacic voting against (his earlier dissent is here).  I think is a sleeper candidate for one of the most important antitrust events of the year as it potentially signals a remarkable expansion of the Commission’s Section 5 Act.  You can read the public comments on N-Data here.

Read the full piece here.

Damien Geradin has posted an interesting paper on “Separating Pro-competitive from Anti-competitive Loyalty Rebates: A Conceptual Framework.”  Here’s the (long) abstract…

Read the full piece here.