Categories: Antitrust, Microsoft

Patent Settlements: Reverse Payments and Timing Market Entry by Generics

Posted by Jay on August 22nd, 2006

As a general matter patent settlements are good. Once both sides have a reasonable estimate of expected outcomes, there is a strong desire to reduce litigation costs and simply work it out.

Pharmaceutical patent infringement settlements between pioneer drug companies and generic ones raise issues that are somewhat unique and pose new questions over which the courts seem unsettled. In late June 2006, the U.S. Supreme Court denied certiorari in FTC v. Schering-Plough and let a 11th Circuit ruling stand that the settlement agreements between Schering-Plough and two generic companies (Upsher-Smith and ESI Lederle) did not unreasonably restrain competition beyong the scope of the patent grant.

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Microsoft Talk in Berkeley

Posted by andrew on July 22nd, 2006

IPSCMicrosoft is planning to "integrate" a virtual machine monitor into a forthcoming version of its Windows Server (codename "Longhorn") operating system. If this sounds eerily familiar, you're right -- it is 1995 all over again.

I'll be presenting a talk about this Aug. 11 at the 2006 Intellectual Property Scholars Conference at UC-Berkeley's Boalt Hall School of Law. You can read an early draft of the article ("Antitrust in the Age of Virtualization: A First Principles Approach") here.

With over 100 speakers on the program, there's a good chance you'll be presenting at IPSC as well. If so, leave a shout out in the comments!

Added Aug. 11: I've posted some photos from the conference.

Microsoft's Competition Principles

Posted by andrew on July 22nd, 2006
Brad SmithAt a specially scheduled luncheon Wednesday (July 19) at the National Press Club hosted by the New America Foundation, Microsoft's General Counsel Brad Smith announced a set of twelve "voluntary principles ... intended to provide the industry and consumers with the benefits of ongoing innovation, while creating and preserving robust opportunities for competition."

While press reports have touted Microsoft's principles as a commitment to "opening up Windows a lot wider," it is not hard to read between the lines of the announcement's text (underlining added) to find a commitment only to more of the same:

Microsoft Corp. recognizes the important role its Windows® desktop operating system products play in the information economy and the responsibilities that come with that role. To promote competitive opportunities and otherwise enhance the appeal of Windows to developers and users, Microsoft is committed to running its Windows business in accordance with the following principles that address computer manufacturer and user choice, opportunities for developers, and interoperability for users. These principles will apply to Windows desktop development projects going forward.

No mention of Windows Server.  No mention of unremedied harms to competition going backward.  And in the meantime, Microsoft will be busily tying its virtual machine monitor (Windows Server Virtualization) to Windows Server "Longhorn."

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