Analysis of the EU and US Legal Frameworks of Anti-Competitive Practices in Merger and Acquisitions Where Patents Remain Unutilized

The legal fields of Mergers and Acquisitions, Competition Law, and Intellectual Property are all well-researched areas with a long history of case law as well. However, at the intersection of these legal fields, there are some important areas that are studied less extensively, although they impose a significant practical effect on the economical and scientific progress of society. One such area lies at an intersection of Mergers and Acquisitions, Antitrust Laws on anti-competitive practices, and Patents, specifically the case when important patents remain unutilized by the companies after the merger or acquisition happens. This scenario may occur for many reasons, from negligence or inability to thoroughly consider the potential of each item in the patent portfolio of all companies involved in the merger and acquisition, all the way to deliberate action taken to acquire companies solely for their patent portfolios, because they are perceived to pose a future risk to the acquiring company’s current business lines. In this dissertation, I will attempt to prove that even though the scenarios where patents remain unutilized after the merger or acquisition happens are not desirable for the economy and society, as many national and international legal frameworks on anti-competitive behavior clearly state, the current national and international organizations do not currently have effective operative measures in place to prevent such scenarios, identify the companies involved and hold them accountable. I will first examine the three different legal fields, their definitions, the objectives of the legislator, some of their most important practical implications in the fields where they intersect from the perspective of our study: Mergers and Acquisitions, Antitrust Laws and Patents. I will pay attention that I describe not only the theory but the practice of these legal fields as well, by investigating the current laws, treaties and case law. Understanding that these legal fields each present a wide topic, I will focus my investigation on the European Union and United States laws and practices, with occasionally some other international examples as well. In the following chapters, I will investigate the practical implications of the scenario where patents remain unutilized after certain mergers and acquisitions, to be able to show the magnitude of the issue by interpolating the relatively scarce economic data available on this subject. The scarcity of data is understandable if we think about the fact that it will not be in the interest of the companies involved to publish such data, and since the problem has not yet been recognized as a major study subject, there are not enough secondary sources where this data could be gathered either. However, for the purposes of my argument, it is enough to prove the existence of the problem, prove that it is not covered by effective measures of the EU and US institutions to prevent these scenarios, identify the companies involved and hold them accountable. This will already show that the objectives of the legislator are not met in the scenarios when patents remain unutilized after certain mergers and acquisitions. My attempts to illustrate the magnitude of the problem will only serve as an emphasizing factor that it needs urgent and operative action from national and international policymakers. In order to make my dissertation as practical as possible, I have decided to include a detailed case study from the European merger control case law where a patent with great importance was left unutilized after a merger. The patent in question was about Gallium Nitride RF Power Transistors, and - as we will discuss - it was fundamental in the development of today’s 4G and 5G telecom network infrastructure. In fact, in this case, the competition authority’s sole focus on market concentration may have been the cause of the acquiring company’s decision to leave the patent unutilized. The fact that development in this area hasn’t stalled was entirely due to other companies taking over and developing their own patents, own technology, and own production facilities. I will also establish an operational framework for a new office of national or international competition authorities, which I am calling the Innovation Protection Office. The proposed operational framework is intended to establish some practical solutions to protect customer access to the officially recognized innovative advantage of patents and ensuring their utilization. I will review the current legal framework for applicable laws and procedures by which this goal can be achieved. There could be many other operational guidelines, processes, or organizational structures that would achieve the same result. Therefore, my main goal in establishing and describing this operational framework is to offer future legislators interested in the problem and the solution some useful tools to govern public policy

Justice above all else

The paper focusses on a framework that can provide means to see a common thread of equity though issues of climate change related migration and geopolitically driven migrations. A million plus migrants and refugees crossed into Europe in 2015, sparking a crisis as countries struggled to cope with the influx and creating division in the European Union(EU) over how best to deal with resettling people. The vast majority arrived by sea but some migrants have made their way over land, principally via Turkey and Albania. Approximately 135,711 people reached Europe by sea since the start of 2016, according to the UNHCR. The conflict in Syria continues to be by far the biggest driver of migration. Afghanistan, Iraq, Eritrea and Kosovo are among the leading sources of migration for escape from poverty and or conflict. Although Germany has had the most asylum applications in 2015, Hungary had the highest in proportion to its population, despite having closed its border with Croatia in an attempt to stop the flow in September. Tensions in the EU have been rising because of the disproportionate burden faced by some countries, particularly the countries where the majority of migrants have been arriving: Greece, Italy and Hungary. However this is not always the case, as in the case of climate refugees. Climate refugees are people who must leave their homes and communities because of the effects of climate change and global warming. Human induced Climate change is causing rising temperatures which contribute to flooding and sea level rise. Rising temperatures also lead to droughts and desertification results in the transformation of arable land to desert. Some of these effects, such as sea level rise, can put land completely underwater, making it uninhabitable. Others effects, such as drought, make it impossible for people in the region to support themselves. Climate refugees belong to a larger group of immigrants known as environmental refugees. The International Red Cross estimates that there are more environmental refugees than political refugees fleeing from wars and other conflicts. UNHCR says 36 million people were displaced by natural disasters in 2009, the last year such a report was taken Scientists predict this number will rise to at least 50 million by 2050. The thread that runs through both the triggers of mass migrations/potential mass migrations globally is the question of “justice for the aggrieved”. It is impossible to look at the question purely from a humanitarian perspective. We present a framework that can guide policy makers and legislators to be able to both look at “the human aspect” and also the “valuation pluralities” simultaneously not as antagonistic but as complementary. Is there a possibility to leave aside all border laws for sake of “Justice above all else”? Climate Justice must be viewed as humanitarian, ethical and political issue, rather than one that is purely environmental or physical in nature. This is done by relating the effects of climate change to concepts of justice, particularly environmental justice and social justice and by examining issues such as equality, human rights, collective rights, and the historical responsibilities for climate change. The paper focusses on a conflict representation and analysis framework that can provide a core of logical coherence to apply the principles of “Equity and Justice” while attempting to deal with both these potential conflict scenarios (climate/geopolitical forced migrations). It lays out using the essential Ladder of Abstraction Approach Theory, the mechanics and dynamics of conflict scenarios borne through the beliefs of the various stakeholders