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Predatory innovation in high-tech markets : analysis in European and American antitrust law


KeywordsTriple Keywords
Acts, Legislative
Legislative enactments
Laws (Statutes)
Enactments, Legislative
Legislative acts
Courts--Law and legislation
Concept formation
Novellas (Short novels)
Notions (Philosophy)


Innovation is often discussed in antitrust law. Predatory innovation is less considered. Perhaps it is because predatory innovation is considered euphemistic: innovation is generally seen as being predatory by nature insofar as its objective is the creation or improvement of an existing product in order to surpass the product -another. Perhaps it is because studying innovation and its mechanisms is often described as a complex exercise. Perhaps it is because the rapid development of high-tech markets, in Europe and in the United States, was accompanied by a doctrinal movement, which preached the need to remove antitrust laws. Perhaps, finally, since court and competition authorities have only minimally termed predatory innovation, this has led the doctrine to devote minimal studies, thus resulting in the limiting of its use by courts and competition authorities.Recognizing the existence of predatory innovation is one of the great necessities of the early 21st century regarding antitrust law. Predatory innovation practices occur regularly and aim at removing the compatibility of third party technologies with those of a dominant firm or at impairing the functioning of competing technologies. As of today, antitrust law provides no answer to these strategies. The stakes are high; the concept of predatory innovation – which we define as the alteration of one or more technical elements of a product to limit or eliminate competition – is currently ignored and/or misunderstood greatly.This thesis focuses on European and North American antitrust laws because their roots are homologous and these countries represent the highest GDP in the world. With predatory innovation practices frequently implemented on several continents at once, overarching rules need to be extended to several legal systems.The regime we exhibit is organized around two main stages:The first implies to reject every related per se rule because they do not meet the new challenges met by antitrust law. Only the diligent implementation of a structured rule of evaluation organized around three filters will ensure appropriate decisions and the elimination of requests for which no antitrust issues are envisaged.Once evaluated by the three filters, an improved test of no economic sense must then be applied to all practices which have theoretical anti-competitive effects and determined fit to be further analyzed. This test, which specifically condemns anti-competitive practices, is a simplification of currently unreadable antitrust law and when applied will lead to the elimination of type I and type II errors. A new study – based on the proposed test – of the most notorious European and North American predatory innovation cases illustrates its effectiveness.The second addresses sanctions – or remedies – to predatory innovation practices. It appears that respecting the strategic choice of companies in terms of interoperability should be recognized as an immutable principle. Also, negotiated procedures shall not be systematized and the development of "soft law" must take a new direction aiming at supporting highly innovative companies.

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