Archive for June, 2009

Free the Market! – An Intriguing Look at Antitrust Law

June 7, 2009

Gary l. Reback, has written an excellent book on contemporary antitrust litigation, Free the Market!.  Reback is an antitrust litigator who has worked on several high profile antitrust cases involving Silicon Valley technology giants, including Microsoft, Apple, and Oracle.  Free the Market! is not limited to IT, however, as it surveys industries as diverse as retail toys sales, women’s handbags,  and telecommunications.  Reback criticizes the “Chicago School” of antitrust analysis, which counsels against active antitrust enforcement by the federal government in favor of allowing the market to determine the appropriate levels of concentration in a given industry absent exceptional circumstances. According to Reback, the Chicago school’s approach has held sway at the Antitrust Division of the Justice Department and the federal judiciary, to the detriment of consumers and technological innovation.

Reback’s critique extends to the patent system, making the familiar argument that the U.S. patent system has impeded innovation by creating patent thickets for innovative technology companies.  He relates teh strey of Nathan Myrvold, the former Microsoft CTO who attained notoriety by saying that Microsoft wanted to charge a royalty on every internet transaction that needed to use Microsoft technology.  Myrhvold later formed Intellectual Ventures, a patent licensing company pursuing  similar royalty generating business model.  Reback notes the patent thicket problem and declares that the patent reform system needs to be reformed, but does not drill down into the types of reforms that would preserve patentees’ rights to protect valid intellectual property without creating the thickets that hurt small businesses.

Nonetheless, Reback’s book is a compelling narrative of antitrust cases that raises important issues in both antitrust and intellectual property law.