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Title: "Intellectual Property Rights Protection in China: Litigation, Economic Damages, and Case Strategies"
Author: Alan Cox
Kristina Sepetys
Publication Date: March 1 2006
Date Added: March 25 2015
Free/Fee: Free
Abstract: Although intellectual property rights (IPR) historically have not received strong protection in the People's Republic of China, as a result of external pressures and internal economic objectives China is now moving closer to the IPR practices and standards found in Western nations. A growing economy, more sophisticated laws, and increased attention to enforcement have led to IPR infringement cases being brought before Chinese authorities in greater numbers. However, IPR laws and policy that would strengthen and enforce the rights of IPR owners have yet to be fully implemented. In this chapter from Thomson West's Corporate Counsel's Guide to Doing Business in China, NERA Senior Vice President Dr. Alan Cox and former Senior Consultant Kristina Sepetys suggest that full implementation would likely provide a higher degree of deterrence to potential infringers. The authors argue that IPR violations may ultimately have negative effects on the broader Chinese economy by discouraging investment and imposing costs upon those companies attempting to offer goods and services. Dr. Cox and Ms. Sepetys note that because violations continue to be widespread, work remains to be done if China is to accord with other major economic powers in the area of IPR protection, particularly in the area of enforcement and damages.
Link: Full Text

Title: "Don't Feed the Trolls?"
Author: John Johnson
Gregory K. Leonard
Christine Meyer
Ken Serwin
Publication Date: September 30 2007
Date Added: March 25 2015
Free/Fee: Free
Abstract: Many vociferous opponents to patent trolls claim that trolls are a drag on society. Patent trolls often are accused of using the patent system to extort unreasonable royalty payments from companies who benefit the economy by developing products that consumers want. The extortionary royalty payments, it is said, constitute a "tax" that ultimately leads to less product development and higher prices for consumers. This article from Les Nouvelles examines whether there is an economic case to be made against trolls and whether society would be better off without them. The authors explore a range of issues surrounding patent trolls, including defining what kind of patent owner qualifies as a troll; the effects of troll activity on innovation; whether -- in light of the recent Supreme Court opinion in MercExchange v. eBay -- trolls should be allowed to exclude from the market entities that produce goods that embody their patents; and whether restrictions, or a downright prohibition, on trolls would increase or decrease social welfare.
Link: Full Text

Title: "The Patent Reform Act"
Author: Brian Ray
Source: Know IP - The Stockholm Network's Monthly IPR Journal Volume 4: Issue 1. January 2008
Publication Date: January 31 2008
Date Added: March 25 2015
Free/Fee: Free
Abstract: NERA Vice President Bryan Ray examines the Patent Reform Act of 2007, which was passed by the US House of Representatives in September and is currently awaiting action by the US Senate. The legislation includes amendments to the statutory provision for the award of damages for patent infringement. While the sponsors of the legislation believe that the amendments will help ensure that damages awards accurately reflect the harm caused by infringement, opponents argue that the amendments will unduly limit damages awards and unnecessarily constrain the approaches courts use to measure patent infringement damages. Mr. Ray reviews the proposed damages provisions in the context of existing case law and sound economic principles for the calculation of patent infringement damages.
Link: Full Text

Title: "Recurring Themes on Reasonable Royalties in Recent IP United States Damage Cases"
Author: Elizabeth Bailey
Alan Cox
Gregory Leonard
Source: NERA Economic Consulting
Publication Date: June 1 2011
Date Added: March 18 2015
Free/Fee: Free
Abstract: A source of considerable concern for companies selling products in the United States is the possibility of being sued for patent infringement in a US court. A finding of infringement of a valid US patent can lead to an award of monetary damages, either lost profits or a reasonable royalty, or a combination of the two. Historically, courts often have been willing to permit expert testimony on damages based on methodologies that had little or no rational, scientific, or business basis. However, four recent cases in the US are indicative of the trend toward higher standards for damage calculation: Lucent Technologies, Inc., v. Gateway, Inc. et al., i4i Limited Partnership v. Microsoft Corporation, Cornell University v. Hewlett-Packard Company, and Uniloc USA, Inc. et al. v. Microsoft Corporation. The Cornell case is a lower court case that was presided over by Chief Judge Rader of the CAFC. All the others were decided by panels of the CAFC judges on appeal from lower courts. This NERA paper describes some of the economic themes that have emerged from these cases. The authors note that litigants in patent cases in the US will need to pay attention to the heightened standards for damage awards when formulating their damage cases. Defendants, in particular, may want to address economically unsound damage claims based on the opinions of the CAFC in these four cases.
Link: Full Text

Title: "Standard Setting: Should There Be a Level Playing Field for All FRAND Commitments?"
Author: Nadia Soboleva
Lawrence Wu
Source: CPI Antitrust Chronicle, October 2013 (1)
Publication Date: October 1 2013
Date Added: March 18 2015
Free/Fee: Free
Abstract: In the past few years, issues related to fair, reasonable, and non-discriminatory ("FRAND") licensing rates for patents have garnered considerable attention. The issues most often come up in the context of standard-essential patents ("SEPs"). However, some FRAND commitments have been undertaken for patents that have not been formally declared as standard essential. In this article from Competition Policy International's Antitrust Chronicle, NERA President Dr. Lawrence Wu and Senior Consultant Dr. Nadia Soboleva consider the development of FRAND-encumbered patents outside the context of a standard-setting organization and the policy issue of whether injunctive relief should apply equally to owners of both types of FRAND-encumbered patents.
Link: Full Text

Title: "Behavioral Economics: Implications for Antitrust Practitioners"
Author: Elizabeth Bailey
Source: NERA Economic Consulting
Publication Date: June 1 2010
Date Added: March 18 2015
Free/Fee: Free
Abstract: For antitrust practitioners, there are two familiar behavioral assumptions used in the economic models that underlie antitrust analyses: firms maximize their profits and consumers maximize their utility. Understanding how consumers and firms depart from the assumptions that underlie standard economic models is the focus of a field of economics research called "behavioral economics." For an antitrust practitioner, understanding how well actual decision-making behavior lines up with that assumed in standard economic models makes good sense because antitrust analyses rely on economic models.
Link: Full Text

Title: "Behavioral Economics in Antitrust"
Author: Elizabeth Bailey
Source: NERA Economic Consulting
Publication Date: April 25 2011
Date Added: March 18 2015
Free/Fee: Payment or membership required
Abstract: Imagine this: When it comes to making decisions, people are like Mr. Spock. They dispassionately weigh pros and cons. They don't let their emotions cloud their decisions. If mistakes are made - maybe buying an overvalued Internet stock or a Las Vegas condo - they learn from them and don't repeat them. None of this is true, of course. But conventional economic theory assumes it is. And these assumptions helped to shape the economics of antitrust. Conventional economic models used in antitrust assume that consumers and firms are rational. US courts, government agencies and practitioners rely on those models and economic techniques derived from them to predict the economic effect of alleged anti-competitive conduct and to make decisions about challenging proposed mergers and acquisitions. However, a growing body of research shows that people and firms do not always behave like Spock.
Link: Full Text

Title: "Recent Developments in Antitrust Enforcement and Litigation in China Involving Resale Price Maintenance"
Author: Yijia (Isabelle) Wang
Source: NERA Economic Consulting
Publication Date: September 9 2013
Date Added: March 18 2015
Free/Fee: Free
Abstract: Resale price maintenance (RPM) has been a "hot" antitrust issue in the antitrust landscape in China. This year, two antitrust enforcement actions by China's National Development and Reform Commission (NDRC) involved allegations against RPM programs, and the penalties set records for a fine imposed by China's antitrust enforcement agencies. The final ruling by the Shanghai Higher Court in the first private antitrust lawsuit involving vertical agreements -- Beijing Ruibang Yonghe Science and Technology Trade Company v. Johnson & Johnson Medical (Shanghai) Ltd., and Johnson & Johnson Medical (China) Ltd. ("Rainbow v. J&J") -- also drew significant attention. In this NERA paper, Senior Consultant Dr. Yijia (Isabelle) Wang examines the current approach to RPM taken by Chinese antitrust enforcers and courts. Specifically, Dr. Wang assesses the framework provided by the Shanghai Higher Court in Rainbow v. J&J, and concludes that it is an appropriate framework to evaluate the competitive effects of RPM programs. She then describes the types of empirical evidence that can be used to evaluate each factor in the Rainbow v. J&J framework.
Link: Full Text

Title: "Competition Policy Applied to Information Exchanges between Competitors in the EU: Proceedings of the Spanish Competition Authority in a Recent Case"
Author: Pedro Posada De La Concha
Sergio Garcia De Frutos
Source: NERA Economic Consulting
Publication Date: December 22 2014
Date Added: March 18 2015
Free/Fee: Free
Abstract: This paper examines the economic analytical framework developed in the EU to identify the elements and factors that are relevant for the assessment of information exchanges, and which were not considered by the CNMC, particularly in the investigation of case S/0404/12. The authors point out that, in order for competition authorities to conduct an objective and rigorous assessment of information exchanges, they must analyze the actual effects that such an exchange may have caused, and examine the specific manner in which the exchange may have facilitated a collusive agreement or could facilitate it in the future. Additionally, the procompetitive effects that could be brought about by these practices should also be examined. Performing thorough and appropriate analyses will help prevent excessive intervention that could discourage practices that are potentially beneficial for consumers.
Link: Full Text

Title: "Levelling the Playing Field: The Role of the Internet and Mobile Computing in Improving the Efficiency and Competitiveness of Australian Small Business"
Author: Lawrence Wu
James Mellsop
Stephen King
Kristin Terris
Will Taylor
Source: NERA Economic Consulting
Publication Date: November 17 2014
Date Added: March 18 2015
Free/Fee: Free
Abstract: This NERA study explores the ways in which the internet and mobile computing have enabled small businesses in Australia to operate more efficiently and to compete more effectively in their markets. Small businesses have traditionally faced a variety of impediments to entering markets, expanding their businesses, and competing with larger firms. This paper discusses how the internet and mobile computing have reduced these impediments, and provides examples of Australian small businesses that have overcome these challenges and have been able to expand their sales using the internet and mobile computing technology.
Link: Full Text

Title: "OPEN STANDARDS: A CALL FOR ACTION"
Author: Ken Krechmer
Publication Date: January
Date Added: March 18 2015
Free/Fee: Free
Abstract: Digital communications is both pervasive and vital across society. This creates a growing public interest in the technical standards that proscribe public communications. The public is demanding, "Open Standards." The rallying cry, "Open Standards," means different things to different groups. This paper reviews the different needs of specific groups of society and develops ten different requirements of Open Standards. To implement these requirements, actions by standardization organizations, international bodies (e.g., WIPO, WTO) and national patent office rules are proposed. Interestingly, technical changes, in the form of new standards, rather than legal or policy changes, appear to be the most important mechanism to meet the requirements of open standards.
Link: Full Text

Title: "Cloud Computing Standardization: Insights from past standardization"
Author: Ken Krechmer
Publication Date: January 2012
Date Added: March 18 2015
Free/Fee: Free
Abstract: Cloud computing is the delivery of computing as a service rather than as products. It promises to dramatically simplify the development and deployment of new and very large economic, social and environmental applications. The future success of these applications will be greatly impacted by the standardization processes used to define the building blocks and interfaces in these systems. The standardization of very large, multi-national cloud computing systems is just beginning. The history of standardization and other large system standards offers valuable lessons on how cloud computing standardization might proceed to maximize vendor participation and user acceptance. This paper proposes a technical approach to assist cloud computing standard development organizations accomplish these difficult tasks.
Link: Full Text

Title: "STANDARDIZATION: A PRIMER"
Author: Ken Krechmer
Publication Date: January 2013
Date Added: March 18 2015
Free/Fee: Free
Abstract: Recognition is growing of the importance of including standardization in an academic education. Standardization committees create a defined order applied to a specific application, e.g., a safety standard, a measurement standard, a telephone jack, a WiFi signal, a quality standard, a process standard, lumber size. This standardization activity is certainly necessary, but theoretically the details of any standard are largely arbitrary, which reduces any academic interest in standardization. This widespread view is simplistic and needs to change. Creating and maintaining a standard has significant technical and economic effects, even when the details of the standard are arbitrary. Teaching this basic theory of standards and its impact is missing from the existing academic curriculum. This primer develops and presents this theory with a focus on current issues related to interoperation.
Link: Full Text

Title: "Intellectual Property and White-collar Crime: Report of Issues, Trends, and Problems for Future Research"
Source: National White Collar Crime Center
Publication Date: December 2004
Date Added: March 18 2015
Free/Fee: Free
Abstract: In 2003-04, the National White Collar Crime Center (NW3C) conducted a study to examine the association between intellectual property (IP) and white-collar crime (WCC). The goal of the study was to create a coherent picture of the linkage between IP and WCC and to identify future research that would benefit policy makers (in developing IP law); federal, state, and local agencies (in enforcing IP law); and the general public (in understanding IP issues).
Link: Full Text

Title: "INTERNATIONAL ANTITRUST AND INTELLECTUAL PROPERTY: CHALLENGES ON THE ROAD TO CONVERGENCE"
Author: Makan Delrahim
Source: American Bar Association, Section of Antitrust Law Conference on Antitrust & Intellectual Property: the Courts, the Enforcers, and the Business World - San Francisco, California
Publication Date: May 21 2004
Date Added: March 18 2015
Free/Fee: Free
Abstract: As you know, intellectual property-based exports - whether copyrighted music, movies or software, or patent-protected goods such as pharmaceuticals or electronic products - have become this country's number one export. As such, their creation and protection is critical to maintaining a vibrant economy. But, with the rapid pace of globalization, intellectual property rights are increasingly crucial to all sectors of the global economy as well.
Link: Full Text

Title: "THE ROLE OF ANTITRUST IN INTELLECTUAL PROPERTY"
Author: Anne K. Bingaman
Source: Federal Circuit Judicial Conference (Patent & Trademark Breakout Session)
Publication Date: June 16 1994
Date Added: March 18 2015
Free/Fee: Free
Abstract: I am delighted to have this opportunity to outline the Division's views on a vitally important issue: the intersection of antitrust enforcement and the protection of intellectual property rights. Today's topic, "Intellectual Property into the 21st Century," is especially appropriate and timely. It is appropriate because intellectual property is the engine for jobs and economic growth, now and in the future. It is timely because we have been actively evaluating our enforcement policy in the past few months and will soon issue new intellectual property Guidelines. In addition, just three weeks ago, we filed our first non-merger intellectual property case in fifteen years. What I hope to convey today is not only the guiding principles of our enforcement policy, but how intelligent antitrust enforcement can spur innovation.
Link: Full Text

Title: "CONTEMPORARY ISSUES AT THE INTERSECTION OF INTELLECTUAL PROPERTY AND ANTITRUST"
Author: Makan Delrahim
Source: The Fair Competition & Market Economy 2004 Shanghai International Forum - Shanghai, China
Publication Date: November 10 2004
Date Added: March 18 2015
Free/Fee: Free
Abstract: Critics of strong intellectual property rights assert that such rights create undeserved "monopolies" that, in turn, lead to anticompetitive conduct, including horizontal market allocations and naked price fixing. These critics urge that antitrust enforcement is an appropriate means to curb the so-called problems associated with strong intellectual property protections, such as the issuance of patents that, in hindsight, do not meet the standards of patentability. Some critics are of the view, for example, that the antitrust laws can, and should, be used to fix imperfections in our copyright laws or patent system, which they argue is outdated or overburdened. The US Department of Justice strongly disagrees with this application of the antitrust laws, for the antitrust laws are not the appropriate vehicle to generate reform in these areas. To the contrary, antitrust laws, which protect competition, not competitors, best operate to correct anticompetitive conduct when necessary, and on a case-by-case basis.
Link: Full Text

Title: "COMPETITION AND INTELLECTUAL PROPERTY IN THE U.S.: LICENSING FREEDOM AND THE LIMITS OF ANTITRUST"
Author: R. Hewitt Pate
Source: 2005 EU Competition Workshop - Florence, Italy
Publication Date: June 3 2005
Date Added: March 18 2015
Free/Fee: Free
Abstract: Defining the relationship of intellectual property rights and competition law is an important economic issue in Europe and the United States. This paper attempts to outline some bedrock principles of intellectual property and antitrust policy in the United States, then discuss how they explain, and in some cases require, the current U.S. approach to a series of specific licensing practices. The basic U.S. approach, reflected in the 1995 DOJ/FTC Guidelines for the Licensing of Intellectual Property, calls for flexible application of economic analysis to licensing practices. And the recent trend has been one of increasing convergence in U.S. and European approaches to IP licensing questions, as seen in the new revisions to the Technology Transfer Block Exemption and accompanying guidelines.
Link: Full Text

Title: "ANTITRUST, INNOVATION AND INTELLECTUAL PROPERTY"
Author: Anne K. Bingaman
Source: Department of Justice
Publication Date: October 7 1994
Date Added: March 18 2015
Free/Fee: Free
Abstract: The U.S. economy today -- recently recognized by the World Economic Forum in Geneva as the world's most competitive -- is the most dynamic, creates the most jobs and produces the highest level of innovation precisely because we as a nation committed long ago to a policy of vigorous but sound antitrust enforcement. Moreover, I believe that antitrust enforcement will be as essential to innovation and economic growth in the 21st century as it has been in the 20th -- and that intelligent antitrust enforcement is a critical component of the fight to keep America competitive in high-tech markets. The fact that the pace of technological innovation is constantly accelerating makes it more, rather than less, important to sustain the right balance between reward and rivalry. The reality is that fear of being left behind is more likely to spur innovation than is complacency bred of stable market power.
Link: Full Text

Title: "INTELLECTUAL PROPERTY AND THE ANTITRUST LAWS: PROTECTING INNOVATORS AND INNOVATION"
Author: Richard J. Gilbert
Source: Department of Justice
Publication Date: February 17 1995
Date Added: March 18 2015
Free/Fee: Free
Abstract: The generally pro-competitive nature of licensing arrangements is a core principle of the proposed Department of Justice Guidelines for the Licensing and Acquisition of Intellectual Property. Licensing promotes the diffusion of knowledge and enhances the utilization of intellectual property. I use the term licensing, as it is used in the proposed Guidelines, in a broad sense to include all forms of joint ventures or other partnering activities in addition to arms-length transactions in which the exchange of knowledge or the use of knowledge assets is an important part of the deal. In today's economy, technology partnerships are essential to remain globally competitive and to market the products that knowledge assets help to create. As the world continues to become a more competitive place, and as firms scattered across the globe develop their own technological advantages, licensing plays an increasingly vital role to ensure that America's industries remain at the technological frontier. The Licensing Executives Society deserves recognition for the important job it has done in promoting these essential technology partnering activities.
Link: Full Text

Title: "ANTITRUST AND INTELLECTUAL PROPERTY"
Author: R. Hewitt Pate
Publication Date: January 2003
Date Added: March 11 2015
Free/Fee: Free
Abstract: Many observers, particularly in the antitrust community, contend there is a tension between antitrust and intellectual property, arguing that the antitrust laws seek to eliminate monopolies and encourage competition, while the intellectual property laws reward creators and inventors with a limited monopoly. Some suggest that there is a need for an expansion of antitrust that would place severe limits on the enjoyment of intellectual property rights. They say that courts afford undue weight to intellectual property protections in the balancing of the two regimes.
Link: Full Text

Title: "INTELLECTUAL PROPERTY AND STANDARD SETTING"
Publication Date: December 17 2004
Date Added: March 11 2015
Free/Fee: Free
Abstract: In June 2010, the United States submitted a paper to the Competition Committee setting forth its views on U.S. competition policy concerning standard-setting activities. This paper updates parts of that submission, focusing on U.S. antitrust enforcement actions and advisory policy guidance and leading U.S. court decisions in the area of standard setting and intellectual property rights. Through enforcement actions and policy statements, the U.S. Department of Justice, Antitrust Division (DOJ) and the U.S. Federal Trade Commission (FTC) (collectively "the Agencies") have provided significant guidance concerning competition issues related to standard setting and intellectual property rights. The Agencies' policy guidance and enforcement decisions in this area take into account the complementary roles that competition and intellectual property laws play in promoting innovation and enhancing consumer welfare.
Link: Full Text

Title: "Addressing Global Scope of Intellectual Property Law"
Author: Hedi Nasheri
Publication Date: November 2004
Date Added: March 11 2015
Free/Fee: Free
Abstract: In essence, this study represents an assessment of the "state of the art," as well as concrete evidence of weaknesses in current law, its enforcement domestically and internationally, problems of application, training issues, and other matters that can be used to assist NIJ in its research agenda in this untapped area by researchers. While the broader interest of this project was to examine the policy issues associated with protectio n and enforcement of IPRs, the results of the current project provide a starting point for a critical analysis of the current state of laws, law enforcement, and potential threats of IPC in a global context.
Link: Full Text

Title: "REPORT OF THE DEPARTMENT OF JUSTICE'S TASK FORCE ON INTELLECTUAL PROPERTY"
Author: David M. Israelite
Source: Department of Justice
Publication Date: October 2004
Date Added: March 11 2015
Free/Fee: Free
Abstract: In response to the growing threat of intellectual property crime, on March 31, 2004, the Attorney General of the United States announced the creation of the Department of Justice's Task Force on Intellectual Property. The Task Force formed five working groups, or subcommittees, to explore important areas of intellectual property. The working groups analyzed existing resources and proposed meaningful improvements in the following areas: (1) Criminal Enforcement, (2) International Cooperation, (3) Civil and Antitrust Enforcement, (4) Legislation, and (5) Prevention.
Link: Full Text

Title: "Prosecuting Intellectual Property Crimes"
Author: H. Marshall Jarrett
Cameron G. Chandler
Ed Hagen
Andrea Sharrin
Source: OLE Litigation Series
Publication Date: January 2013
Date Added: March 11 2015
Free/Fee: Free
Abstract: This publication is the fourth edition of the "Prosecuting Intellectual Property Crimes" Manual and provides significant updates to the comprehensive 2006 edition. It examines in depth all areas of prosecuting intellectual property crimes and incorporates a number of recent changes to the case law, statutes, and sentencing guidelines.
Link: Full Text