Posts by Thibaultschrepel (1 results)

  • The ‘Enhanced No Economic Sense’ Test: Experimenting with Predatory Innovation

    This paper originates from a long-standing anachronism of antitrust law with regard to high-tech markets. Conventional wisdom assumes that antitrust law mechanisms are well suited to the study of practices in technology markets and that only adjustments should be made to these mechanisms, and sparingly at that. This is untrue. Several practices fall outside the scope of antitrust law because mechanisms for assessing the legality of practices are not adequate. In fact, no one can accurately identify a typical legal approach for non-price strategies, a truth which gives way for a chaotic jurisprudence to emerge from this lack of universal understanding, which we will show. With this paper, our ambition is to contribute to the literature by advancing a new test, the “enhanced no economic sense” test, to be applied to non-price strategies. Various tests have been designed over the years to address the legality of diverse practices under antitrust law. Some of them are based on price analysis, including the test of the equally efficient rival, the rising rivals’ costs test, and the profit sacrifice test. Some others are based on comparison, such as the balancing test, the test of disproportionality, and the compatibility test. They all suffer from multiple flaws. None of them, in fact, address non-price strategies such as predatory innovation without creating numerous type-I or II errors.[1] Conversely, the test proposed in this article results in the creation of a uniform rule of law, which will ultimately increase consumer welfare by encouraging companies to continue innovating, while limiting such type-I or II errors. Only the “no economic sense” test comes close to achieving this goal, which is why this article proposes a new version of the mechanism. Its utility is shown by applying it to most of the major cases which dealt with predatory innovation, namely, Berkey Photo, the North-American and European versions of the Microsoft case, and the iPod iTunes Litigation.