An Overview of the Antitrust Analysis of Suppression of Technology
![handle is hein.journals/antil66 and id is 431 raw text is: AN OVERVIEW OF THE ANTITRUST ANALYSIS OF
SUPPRESSION OF TECHNOLOGY
JOEL M. COHEN*
ARTHUR J. BURKE**
Technological innovation is a significant-perhaps the most signifi-
cant-long-term source of economic growth and higher standards of
living.' The issuance of the Intellectual Property Guidelines and sev-
eral recent government antitrust investigations and enforcement
actions-such as the investigations of technology giants Microsoft and
Intel-suggest that the antitrust enforcement agencies are paying partic-
ular attention to issues of technology and innovation and the intersection
of antitrust law and intellectual property.2 This is, therefore, a useful
* Member of the New York and District of Columbia Bars.
** Member of the New York Bar.
See, e.g.,Janusz A. Ordover & Robert D. Willig, Economist's View: The Department ofJustice
Draft Guidelines for the Licensing and Acquisition of Intellectual Property, 9 ANTITRUST, Spring
1995, at 29; RichardJ. Gilbert & Steven C. Sunshine, Incorporating Dynamic Efficiency Concerns
in Merger Analysis: The Use of Innovation Markets, 63 ANTITRUST L.J. 569 (1995) (Economic
progess depends upon a steady stream of innovation); Thomas M.Jorde & DavidJ. Teece,
Rule of Reason Analysis of Horizontal Arrangements: Agreements Designed to Advance Innovation
and Commercialized Technology, 61 ANTITRUST L.J. 579 (1993) (The development, commer-
cialization, and diffusion of product and process technologies have long been the most
fundamental competitive forces in advanced industrialized economies, generating eco-
nomic growth, [and] enhancing consumer welfare);Joseph F. Brodley, The Economic Goals
of Antitrust, Efficiency Consumer Welfare, and Technological Progress, 62 N.Y.U. L. REV. 1020,
1026 (1987) (technological progress is the single most important factor in the growth
of real output in the United States and the rest of the industrialized world).
This view of the importance of technological innovation is often said to have originated
with the work ofJoseph Schumpeter in the 1940s. SeeJOSEPH A. SCHUMPETER, CAPITALISM,
SOCIALISM AND DEMOCRACY (1942); Richard M. Brunell, Editor's Note, Symposium: A Critical
Appraisal of the Innovation MarketApproach, 64 ANTITRUST L.J. 1 (1995) (discussing influ-
ence of Schumpeter). Schumpeter's related hypothesis that monopoly or market power
is generally conducive to innovation has gained substantially less acceptance. See, e.g., F.M.
SCHERER, INNOVATION AND GROWTH: SCHUMPETERIAN PERSPECTIVES (1984).
2 See, e.g., Address by Joel I. Klein, Assistant Attorney General, Antitrust Division, U.S.
Dep't of Justice, Cross-Licensing and Antitrust Law (May 2, 1997):
[T] he intersection of antitrust law and intellectual property has become a major
agenda item for the Antitrust Division.... In a world where so many important
products and services are driven by technology, it is becoming increasingly appar-
ent that competition among technologies, and in the development of those](ViewImageLocal?handle=hein.journals/antil66&div=18&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
An Overview of the Antitrust Analysis of Suppression of Technology
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most