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The article focuses on the evolving landscape of antitrust and competition law as applied to the digital economy, particularly in jurisdictions like the Republic of China and the UK. It critically examines the "platform monopoly" thesis, which posits that leading digital platforms possess significant market power that harms competition, and argues against the presumption of inherent market dominance.

Intellectual property (IP) rights in general and patents in particular are commonly characterized as, at best, a necessary 'monopoly' granted to correct weak private incentives to invest in generating innovations [...]

Major competition regulators, and substantial portions of the scholarly community, have rapidly adopted the view that "killer acquisitions" and "kill zones" constitute significant sources of competitive risk arising from incumbent acquisitions of emerging firms in digital markets. Based on this view, policymakers in the United States, European Union, and other jurisdictions have advocated for, and in some cases have taken, substantial changes to merger review policies that would erect significant obstacles to incumbent/startup acquisitions. A review of the relevant body of evidence finds that these widely-held views concerning incumbent/ startup acquisitions rest on meager support, confined to ambiguous evidence drawn from a small portion of the total universe of acquisitions in the pharmaceutical market and theoretical models of acquisition transactions in information technology markets. Moreover, the emergent regulatory and scholarly consensus fails to take into account the rich body of evidence showing the critical function played by incumbent/startup acquisitions in supplying a monetization mechanism that induces venture-capital investment and promotes startup entry in technology markets. The prospect of an acquisition transaction in the case of technical and commercial success generally promotes innovation and competition by providing a transactional device that expands startups' access to the capital inputs required to undertake R&D and the commercialization services required to convert R&D outputs into commercially viable products. At the same time, these acquisitions enable incumbents to access the specialized innovation capacities of smaller firms. Proposed changes to merger review standards would disrupt these efficient transactional mechanisms and are likely to have counterproductive effects on competitive conditions in innovation markets. [ABSTRACT FROM AUTHOR]

For approximately four decades starting in the late 1930s, the U.S. patent system was in a state of distress. Courts widely invalidated patents, antitrust risk cast a cloud over licensing [...]

In the ongoing debate over patent reform, it is common to assert that there are 'too many' patents, or that patents are 'too strong,' or both. The result, so the [...]

Competition policy generally prohibits coordination among buyers or sellers, especially coordination on price, price-related inputs, and output. In licensing markets for standard-essential patents (SEPs), it has been periodically proposed that this rule should be relaxed to permit licensing negotiation groups (LNGs), which is expected to reduce transaction costs and the purportedly 'excessive' royalties paid to licensors. Based on the economic structure and historical performance of wireless technology markets, this policy intervention is likely to degrade, rather than enhance, competitive conditions in the wireless, automotive, and other markets encompassed by the 'Internet of Things'. In the short term, LNGs would most likely result in a redistributive (not an efficiency) effect that shifts value from innovators to implementers in the technology supply chain without necessarily passing on cost-savings to consumers. In the medium to longer term, LNGs are liable to impose efficiency losses by endangering the viability of licensing-based monetization models that have funded research and development, promoted dissemination of technology inputs, facilitated entry in device production, and enabled business models across multiple industries. While LNGs may reduce the transaction costs of SEP licensing, the historical record shows that pooling structures can achieve the same objective at a substantially lower risk of competitive harm. [ABSTRACT FROM AUTHOR]

Intellectual property licenses are commonly portrayed as a “tax” that limits access to technology assets, which in turn stunts innovation by intermediate users and inflates prices for end-users. Renewed skepticism toward IP licensing, and associated judicial and regulatory interventions that apply per se-like liability rules under patent and antitrust law to IP licensing, overlook the fact that IP licenses typically play a “positive-sum” enabling function, rather than a “zero-sum” exclusionary function, by mitigating expropriation risks that would otherwise frustrate transactions between the holders of complementary specialized IP and non-IP assets. As illustrated by paradigm examples of licensing and other IP-dependent arrangements in content and technology markets, these transactional structures facilitate valuecreating exchanges of knowledge assets, promote the division of labor among innovation and production specialists, and lower entry costs for firms that have strong innovation capacities but weak production and distribution capacities. An analytical framework that overlooks the enabling function of IP licensing is prone to recommend “false positive” policy actions that undermine the formation of markets in IP assets and, more generally, induce organizational distortions and reduce competitive intensity by disadvantaging R&D-specialist entities that rely on licensing-based monetization mechanisms while favoring integrated firms that maintain end-to-end commercialization structures. [ABSTRACT FROM AUTHOR]

Scholars and other commentators widely assert that enforcement of contractual and other limitations on labor mobility deters innovation. Based on this view, federal and state legislators have taken, and continue to consider, actions to limit the enforcement of covenants not to compete in employment agreements. These actions would discard the centuries-old reasonableness standard that governs the enforcement of these provisions, often termed "noncompetes," in all but four states (notably, California). We argue that this zero-enforcement position lacks a sound basis in theory or empirics. As a matter of theory, it overlooks the complex effects of contractual limitations on labor mobility in innovation markets. While it is frequently asserted that noncompetes may impede knowledge spillovers that foster innovation, it is frequently overlooked that noncompetes may encourage firms to invest in cultivating intellectual and human capital. As a matter of empirics, we show that two commonly referenced bodies of evidence fail to support zero enforcement. First, we revisit the conventional account of the rise of Silicon Valley and the purported fall of the Boston area as innovation centers, showing that this divergence cannot suitably be explained by differences in state law regarding noncompetes. Second, we show that widely cited empirical studies fail to support a causal relationship between noncompetes, reduced labor mobility, and reduced innovation. Given these theoretical and empirical complexities, we propose an error-cost approach that provides an economic rationale for the common law's reasonableness approach toward contractual constraints on the circulation of human capital. [ABSTRACT FROM AUTHOR]

Information technology markets in general, and wireless communications markets in particular, rely on standardization mechanisms to develop interoperable devices for data processing, storage and transmission. From 2G through the emergent 5G standard, wireless communications markets have largely achieved standardization through cooperative multi-firm arrangements that likely outperform the historically dominant alternatives of government monopoly, which is subject to informational deficits and regulatory capture, and private monopoly, which suffers from pricing and other distortions inherent to protected market positions. This cooperative process has successfully relied on three key legal elements: reasonably secure patents, quasi-contractual licensing commitments supplemented by reputation effects, and targeted application of antitrust safeguards against collusion risk. Over approximately the past decade, antitrust agencies and courts in the U.S., Europe and Asia have taken actions that threaten this legal infrastructure by limiting patentees' ability to seek injunctive relief, adopting rigid understandings of 'fair, reasonable and non-discriminatory" licensing principles, and addressing collusion risk among licensors-innovators while overlooking (and even exacerbating) collusion risk among licensees-implementers. These judicial and regulatory interventions in IP licensing markets shift value from firms and economies that specialize in generating innovations to firms and economies that specialize in integrating innovations into end-user products. These entity-level and country-level redistributive effects are illustrated by lobbying activities in the wireless communications markets and antitrust actions against IP licensors in jurisdictions that have substantial net IP deficits and are principally populated by IP licensees. Current antitrust policy promotes producers' narrow interests in lower input costs while ignoring the broader public interest in preserving the cooperative standardization structures that have supported innovation and commercialization in the digital economy. [ABSTRACT FROM AUTHOR]