U.S. Antitrust Modernization Commission Proposes Treating "Significant Technological Innovation" Differently Under the Antitrust Laws

The Antitrust Modernization Commission will hold a public meeting on January 13, 2005. The purpose of the meeting is for the Antitrust Modernization Commission to determine issues for further Commission study, pursuant to its statutory mandate. Click here for the agenda.

The Commission's December 21, 2004 memorandum on "Intellectual Property Issues Recommended for Commission Study" recommends that the Commission study the following issues:

1. Should industries involving significant technological innovation be treated
   differently under the antitrust laws? How does the fact that IP and innovation-driven industries depend on the opportunity to set prices above marginal costs to earn returns affect the significance of common benchmarks for market definition and market power?
2. How does the current intellectual property regime affect competition?

The Working Group has also recommended that the Commission NOT study the following issues:

1. Should a duty to deal in intellectual property (e.g., compulsory licensing) be implied in circumstances in which there is no such duty for other types of property?
2. How should antitrust law analyze misleading conduct and other possible abuses of standard setting processes?
3. Should the Standard Development Organization Advancement Act be modified?
4. How should the antitrust laws deal with the problems that can arise from patent rights “abuses,� e.g., efforts to inhibit competition from generic drug manufacturers?
5. Do the FTC and DOJ diverge on antitrust/IP interface issues, and should any such differences be reconciled?
6. Should the patent system be replaced with a system of government-granted prizes for innovation (coupled with government buy-outs of some patents)?
7. Should programs to collect data for use by researchers and firms be established or expanded?

Click here for public "Comments Regarding Issues for Commission Study."