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This chapter examines the scope of application of the competition laws in the US, the EU, and Japan. A number of legal rules determine the effective scope of application of competition laws. The analysis suggests a trend towards acceptance of the exercise of jurisdiction based on anticompetitive effects.

This chapter sheds light on antitrust. It begins with a primer explaining the most important of the regime's doctrines. It then places today's law in context by tracing the history of antitrust law. It concludes by surveying the evidence on the need for antitrust.

This chapter addresses the argument in the economics in law. It specifically attempts to show that to understand properly the significance and the appeal of—not to mention the controversy generated by—the modern law and economics tradition in the United States, it must be conceived not against the backdrop of American jurisprudence, but in relation to developments in economics, primarily at the University of Chicago, since the 1930s. It also provides three general observations, all of which will be developed more or less thematically. There are two distinct developments that deserve consideration in evaluating the effect of the Chicago economic analysis on the evolution of modern American antitrust law.

This chapter begins with a brief discussion of the distinctive features of antitrust extraterritoriality as it has been experienced in the United States. It then discusses US appetite for extraterritoriality, the limits to judicial and enforcement comity, and the efforts by antitrust authorities to assist one another in fulfilling their independent objectives.

This chapter discusses the current state of international jurisdiction and cooperation in Brazilian antitrust law, in order to orient strategies and policies related to international competition law issues. The chapter is organized into two parts. The first part focuses on the extension of Brazilian antitrust laws. The second part deals with cooperation policy with respect to competition.

This chapter analyzes the tools available to Israel to tackle international antitrust issues. The chapter is organized as follows. The second section analyzes the current international antitrust regime in Israel. The analysis raises interesting theoretical and practical issues that are relevant to all jurisdictions that apply their domestic laws to foreign firms. The third section analyzes the regime from a wider perspective and focuses on the practical aspects of antitrust enforcement. The next section analyzes some of the implications of the findings for international antitrust and suggests some ways that small economies can adopt in order to play a more effective role in the international antitrust arena.

This chapter analyzes the unjustified differences between proof of harm in competition and innovation policy. In antitrust law, harm is never presumed and must be proven without undue speculation, and legal remedies are often denied to those who were clearly harmed. By contrast, IP law often presumes harm, sometimes even going to the extreme of awarding damages to IP owners who were actually benefitted rather than harmed by a defendant's actions. The rhetoric of “property” that is used in IP discourse explains part, but hardly all, of this difference.

This chapter explores the underpinnings of the mutual distrust between intellectual property (IP) and antitrust and the various stages of their relationship. It begins by discussing the conflict between IP and antitrust. It then traces the three stages of the intersection in the 20th century, in which courts first refused to impose liability for patent-based activity, then limited patentees' power, then moved toward a predominant IP. The chapter concludes by examining important agency guidelines and courts' analyses of refusals to license.

This chapter examines exclusionary practices by dominant firms in innovation-intensive markets. Both IP and antitrust law are properly concerned with incentivizing innovation. But innovation can also be manipulated in harmful ways. Dangers to both competition policy and innovation policy can emerge when a dominant firm has significantly greater resources than its rivals. The chapter looks at problems involving commandeering and nonuse of patents, refusals to deal in network industries, the appropriate scope of any policy of internet neutrality, and whether innovation itself should ever be condemned as anticompetitive.

This chapter discusses the history, institutional structure, mandate, procedural characteristics, and agency performance of the competition law system of the United States. The US enforcement system is complex. There are two major federal enforcement agencies and fifty state enforcement agencies, plus five federal districts or territories, and enforcement through private litigation. The state attorneys general can enforce federal antitrust law as well as state antitrust law when state residents are injured. The two US federal agencies are the Department of Justice Antitrust Division and the Federal Trade Commission. The former is a division of the executive branch; the latter is an independent regulatory agency. The Antitrust Division of the Department of Justice follows the bifurcated judicial model, investigating cases and bringing enforcement actions in federal courts of general jurisdiction. The Federal Trade Commission, consisting of five commissioners, follows the integrated agency model, with power to investigate and adjudicate cases internally, subject to subsequent appellate court review.

This chapter explores the nature and goals of competition policy, including some important differences between price competition and innovation competition. Specifically, it discusses antitrust's “common law” approach to competition policy; the relationship between antitrust policy, market structure, and innovation; and the uses and limits of antitrust to improve innovation. It is argued that IP law can take some important lessons from the road that antitrust law has taken toward reform.

The ability of antitrust law to deal with innovation restraints is limited because the path of innovation is frequently unpredictable, at least when the innovation's promise lies in the future. The doctrine of IP misuse provides an alternative tool to combat innovation restraints. In addition, misuse can provide a remedy against some anticompetitive practices, provided that the practices involve a patented or copyrighted good. This chapter argues that although antitrust violations are an important subset of misuse cases, antitrust law should not define the scope of the misuse doctrine. Misuse doctrine emanates from IP policy, not from antitrust policy, and has its own values to protect. Among these are restraints on competition, restraints on innovation, and unreasonable foreclosure of information or technology that rightfully belongs in the public domain.

This chapter examines competition law's doctrine on horizontal agreements. It begins by addressing the U.S. statute, Sherman Act Section 1. The chapter then turns to the leading Supreme Court precedents on Section 1. These are the primary source of U.S. antitrust law in general and specifically in delineating what constitutes a horizontal agreement. Here, there is more conflict than meets the eye. Finally, the corresponding provision in the European Union, Article 101, is examined. Because the underlying questions and the relevant economic theory of oligopolistic coordination are the same, it is natural to expect similar challenges to arise, and they do.

In a small, open economy like Canada's, it would be plainly incomplete to think of antitrust law and policy as involving only domestic interests. This has always been true, but of course this has become even more essential to appreciate the growth in international trade. This chapter maps out the international contours of Canadian competition law and practice. First, it considers the extraterritorial reach of Canadian competition law. It looks at three relevant dimensions of extraterritorial application: Does Canadian law reach domestic conduct that affects foreign markets? Does Canadian law reach foreign conduct that affects domestic markets? Finally, does Canadian law reach foreign conduct that affects foreign markets? In discussing extraterritoriality, the central issue is whether Canadian law has jurisdiction over the relevant conduct. But even if it does have jurisdiction, it may decline to assume jurisdiction on grounds of international comity. The second section outlines the role of comity in Canadian attitudes to the extraterritorial reach of its statutes.

This chapter gives a brief overview of the U.S. patent system and evaluates the problem of incentives and foreseeable harm. It also considers the severe limitations on any notion that antitrust law can repair defects in the patent system. In a well-designed patent system, an issued patent would tell the world precisely what the patentee invented. This invention would be sufficiently “nonobvious” that one would not expect large numbers of others to develop it on their own without copying. But the system tends to break down if the invention is not substantial, meaning that others are likely to have discovered it on their own; either the concept of the invention or its description are so abstract that the patent spills over into areas that the patentee really did not contemplate and for which the patent itself did not provide sufficient notice; or the patentee is permitted to have “afterthoughts,” or claims for the invention that were not in mind when the patent application was originally filed. The current patent system suffers from failures of all three types.