“Predatory Technology” Update: The History
When I blogged recently about a British lawyer’s proposal to make “predatory technology” into a “viable antitrust concept,” I didn’t realize how many prior attempts have been made in American courts and regulatory agencies to do just that.
A 2010 article (authored by three lawyers in a prominent international antitrust practice group) collects and comments on nine cases, arising as early as 1979 and as recently as 2009, that can fairly be counted as incorporating some version of “predatory innovation” as an antitrust doctrine. The authors introduce the topic this way:
Some conduct that is claimed to be innovation is not innovation at all, but instead is intended to be exclusionary. For example, a drug maker might develop a chewable version of a prescription medication to prevent generic substitutions. Or a surgical device maker might redesign its product to make third-party peripherals incompatible.
In such cases, the purported innovation either does not improve the product in any material way or offers only a small benefit, and leads to the exclusion of rivals. Where a product redesign is meant to impede competition, entrench a dominant firm’s position in the market, or artificially change the structure of the market so as to make it more difficult for new entrants to succeed (and without corresponding benefits to consumer welfare), “innovation” should be discouraged and may be unlawful predatory conduct under antitrust laws.
Although I reject the authors’ terminology and analysis completely, I’m grateful for their work in bringing the relevant historical materials together. And thanks also to Adam Mossoff, professor of law at George Mason University and intellectual property law expert, for alerting me to the fact that “predatory technology” is not just a trial balloon but a doctrine with a history. As of now, fortunately, it’s not gained much acceptance. But I see no insuperable barrier to its future expansion.