Elhauge on Tying: Vindicated by History

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Modularity, Vertical Integration, and Open Access Policies: Towards A Convergence of Antitrust and Regulation In The Internet Age

This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in assessing whether regulation should mandate open access to information platforms. The authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms in the future and facilitate a true convergence between antitrust and regulatory policy.

The reform process of the railway sector in Europe: A disaggregated regulatory approach

The railroad package of 2001 focusing on access regulation is in the process of a reform. Particularly, the European Commission intends to remove the obstacles to fair competition that have been identified since 2001. In this context, the paper points out the relevance of the disaggregated regulatory approach. It is necessary to differentiate between infrastructure components which are monopolistic bottlenecks (e.g. railway tracks) and competitive components (e. g. service functions like ticketing). Competition on the markets for railway transport services requires non-discriminatory access to the railway infrastructures. As well the horizontal interoperability between national railway networks is a prerequisite that full competition on European markets for railway services can evolve. Train access charges should provide incentives for the different track companies to participate in collaborations offering international cross-border based track capacities, whereas a regulatory prescription of international track corridors conflicts with the competence to allocate the track capacities of the different track companies. Finally, the complex question of the interplay between discrimination and the deficit problem is addressed in order to present solutions to avoid crosssubsidization between track infrastructure and markets for transport services and to guarantee the efficient usage of public funds. --

Economics and the design of patent systems

The author uses intuition derived from several of his research papers to make three points. First, in the absence of a common law balancing test, application of uniform patentability criteria favors some industries over others. Policymakers must decide the optimal tradeoff across industries. Second, if patent rights are not closely related to the underlying inventions, more patenting may reduce R&D in industries that are both R&D and patent intensive. Third, for reasons largely unrelated to intellectual property, the U.S. private innovation system has become far more decentralized than it was a generation ago. It is reasonable to inquire whether a patent system that worked well in an era of more centralized innovation functions as well for the more decentralized environment of today.

The Patent Paradox Revisited: Determinants of Patenting in the US Semiconductor Industry, 1980-94

This paper examines the patenting behavior of firms in an industry characterized by rapid technological change and cumulative innovation. Recent evidence suggests that semiconductor firms do not rely heavily on patents, despite the strengthening of US patent rights in the early 1980s. Yet the propensity of semiconductor firms to patent has risen dramatically over the past decade. This paper explores this apparent paradox by analyzing the patenting activities of almost 100 US semiconductor firms during 1980-94. The results suggest that stronger patents may have facilitated entry by firms in niche product markets, while spawning patent portfolio races' among capital-intensive firms.

The Arc of Monopoly: A Case Study in Computing

The world we live in today is defined by three great arcs. The first is the world of semiconductors and the innovation characterized by Moore’s law, the second is the creation of ubiquitous wireless access, and the third is the emergence of the internet platform. In that context, this Essay looks at government claims of monopolization in telecommunications and computing by considering past antitrust actions against AT&T, IBM, and Microsoft. Early antitrust actions against AT&T and IBM of course long predated the rise of the Chicago School, but later actions against AT&T and IBM overlapped that rise as did the antitrust actions against Microsoft. These antitrust actions intersected with and influenced these three arcs, though teasing out the precise nature of that influence is ultimately quite trick

Progress Versus Protectionism: The Double Taxation of Computer Software in Korea

The Republic of Korea is one of the fastest-growing economies in Asia and the eighth-largest trading partner of the United States. Despite its increasing prominence in the world market, Korea\u27s trade practices reveal a degree of protectionism more common among less developed countries. Nowhere is this more apparent that in its policies concerning the taxation of imported computer software. The author argues that Korea\u27s practice of charging customs duties on the total transaction cost of software media and its data content, and later taxing the revenue derived from its domestic sale, is a form of double taxation that is virtually unprecedented among software-importing nations. The author analyzes the customs valuation of software and concludes that Korea\u27s content-based valuation policy is not only undesirable, but also contrary to prevailing international standards. Moreover, Korea\u27s implementation of this unpublished policy to target United States software companies may violate provisions of the General Agreement on Tariffs and Trade. The author also discusses the approaches of the Korean Taxing Authority and the United States Internal Revenue Service to the characterization and taxation of software revenue, and proposes measures that the Korean government should take to ensure more equitable treatment of imported software products

Mitigating "Anticommons" Harms to Science and Technology Research

There are three analytically distinct layers of the phenomenon that has been labeled “the anticommons” and indicted as a potential impediment to innovation resulting from patenting and enforcement of IPR obtained on academic research results. This paper distinguishes among “search costs”, “transactions costs”, and “multiple marginalization” effects in the pricing of licenses for commercial use of IP, and examines the distinctive resource allocation problems arising from each when exclusion rights over research inputs are distributed among independent owners. Where information use-rights are gross complements (either in production or consumption), multiple marginalization—seen here to be the core of the “anticommons” – is likely to result in extreme forms of “royalty stacking” that can pose serious impediments to R&D projects. The practical consequences, particularly for exploratory scientific research (contrasted with commercially-oriented R&D) are seen from a heuristic analysis of the effects of distributed ownership of scientific and technical database rights. A case is presented for the contractual construction of “research resource commons” designed as efficient IPR pools, as the preferable response to the anticommons.law and economics, IPR, licensing, anticommons, patent hold-ups, royalty stacking, database rights, contractual commons, efficient pools