voiceless

The timing of Microsoft's $45 billion bid for Yahoo! may have as much to do with the impending departure of the Microsoft-friendly Bush administration as it does with the software giant's strategic plans.

Given the antitrust agencies' easy approval of Google's Doubleclick acquisition, it appears that "flat Web" thinking has taken hold in Washington. This is the notion that there are no barriers to entry or growth of Web-based companies, simply because of the Web's open architecture and massive scale. But if that is so, why hasn't Microsoft been able simply to grow its own Web presence to the size it desires? It's certainly not for lack of trying.

It's hard to see any merger-specific synergies resulting from this transaction. This is plainly a grab for Internet traffic so that Microsoft can continue to defend its Windows/Office monopoly against nascent Web-based alternatives. Technologically speaking, there are no new products or services Microsoft can offer to the 27% of Web users visiting Yahoo.com every day that it couldn't already have delivered to the 18% who visit MSN.com.

Even so, Yahoo's stock price indicates that Wall Street is pretty sure this deal is going to go through, and I have to agree. Our current breed of antitrust enforcers, who have already decided that the Web is flat and that media concentration is no longer possible, will define a broad market and assign tiny market shares to MSN and Yahoo. Meanwhile, the Microsoft-free world just got a whole lot smaller today.

From the Washington Post's Reliable Source column:

Ever wonder how Alan Greenspan managed to land a much younger babe like Andrea Mitchell? Now revving up the promotional machine for his new book, the former Fed chairman and his now-wife divulge in a "60 Minutes" interview, to air Sunday on CBS, how he got her back to his apartment after that first dinner date in 1984.

According to Mitchell, he told her he wanted "to show me an essay he had written."

"On what?" asks interviewer Lesley Stahl.

"Antitrust," says Mitchell. "Monopolies."

"On the Sherman Antitrust Act of 1890," clarifies Greenspan.

"You know how to woo a girl," says Stahl.

"It worked," says Greenspan.

(Thanks to Bert Foer.)

Of all the honorary degrees Harvard could have awarded Bill Gates, he gets a Doctor of Laws? Computer science, business or economics, I could see. Even public health, education or political science for his philanthropic achievements. But during this unprecedented era of attacks on the rule of law by the wealthy and powerful, law schools should be leading the resistance, and Harvard should be in the vanguard. Harvard should have found a way to honor its most distinguished dropout without dishonoring the legacy of the late Prof. Phillip Areeda and the many great antitrust enforcers who have graduated from its law school. (These articles explain how U.S. courts have largely allowed Microsoft to violate and evade the antitrust laws for more than a decade.)

Memory chip manufacturer Rambus Inc. has spent the past several years as a defendant facing multiple antitrust claims. Rambus allegedly promoted the adoption of its designs by an industry standards organization, while failing to inform the organization that it had pending, secret patent applications covering those designs. Rival company Infineon Technologies AG, accused of infringing Rambus's patents, won a jury verdict on an antitrust counterclaim, but had that verdict overturned by the Federal Circuit in 2003. The Federal Trade Commission conducted its own investigation beginning in 2002, however, and last August unanimously held Rambus liable for unfair competition in violation of section 5 of the FTC Act. The administrative litigation is still pending, and appeals will likely follow.

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There are many serious public policy objections to the patenting of DNA molecules. But the Patent Office has found it fairly easy to dismiss these objections with the response that until Congress and/or the courts change the patent laws, public policy considerations will be entitled to no weight in the patentability analysis:

"Whoever invents or discovers any new and useful ... composition of matter ... may obtain a patent therefor." 35 U.S.C. 101. Congress creates the law and the Federal judiciary interprets the law. The USPTO must administer the laws as Congress has enacted them and as the Federal courts have interpreted them. Current law provides that when the statutory patentability requirements are met, there is no basis to deny patent applications claiming DNA compositions, or to limit a patent’s scope in order to allow free access to the use of the invention during the patent term. (66 Fed. Reg. at 1095)

That's what makes this such an exciting proposal:

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After the Senate bipartisan Patent Reform bill was introduced in August 2006 (see my earlier post), patent reform appeared to have taken a back seat in the new Congress in light of other pressing concerns such as the budget and the war in Iraq, but not for very long.

Members of the House Internet and Intellectual Property Subcommittee in the 110th Congress told Technology Daily that updating the patent laws will be their chief priority. California Democrat Howard Berman, the panel's chairman noted that too much time was being taken to get patents issued and "things being patented that shouldn't have been patented."

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Less than two weeks ago, the U.S. Supreme Court held that a licensee could "pay and sue," i.e., continue to pay royalties, and nevertheless, challenge the validity, infringement or enforceability of the licensed patent in a declaratory judgment (DJ) action.

The ability to pursue this option changes the licensing calculus in our patent system which is dominated by transaction costs associated with both patent prosecution and patent litigation. See, for example, my article on "Why 'Bad' Patents Survive in the Market and How Should We Change?--The Private and Social Costs of Patents," 55 Emory L.J. 61 (2006).

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According to this news item, the Federal Trade Commission has voted not to challenge Google's $1.65 billion acquisition of YouTube.

I haven't yet been able to find notice of the decision on the FTC's Web site, but I'm a little puzzled already that the agency didn't even consider it necessary to issue a Second Request in this case. According to Hitwise, the pre-merger shares of YouTube and Google in the online video market were 45 percent and 11 percent respectively, giving the merger a whopping delta (i.e., increase in the HHI) of 990 points in an already highly concentrated market. I know we've come a long way from expecting the agencies to observe the thresholds stated in their own Horizontal Merger Guidelines, but this is ridiculous.

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