This document is available in three formats: this web page (for browsing content), PDF (comparable to original document formatting), and PowerPoint. To view the PDF you will need Acrobat Reader, which may be downloaded from the Adobe site. For an official signed copy, please contact the Antitrust Documents Group.


Shearman and Sterling LLP's logo - Company name and flat world map



Innovation Markets Analysis:
When Should This Tool Come Out of the Shed?




Presented at the Panel on Non-Price Competition/Innovation
Workshop on Merger Enforcement
Federal Trade Commission
February 18, 2004

Steven C. Sunshine
Jonathan M. Lave


Overview

  • Innovation is an important dimension of rivalry and engine of progress.

  • Predictions of a merger's effect on innovation output are uncertain.

  • Legal and economic issues require showing of probable effect on output

    • Genzyme: example of insufficient evidence of effect?

  • Practical application may be infrequent and more likely in certain industries.


Innovation markets are not easy to define with confidence

  • Sources of innovation are difficult to identify

  • Strength and significance of population of innovators are unclear

  • Type of innovation may be relevant to confidence in market boundaries


Predicting competitive effects requires an assessment of merger's effect on innovation and output

  • Structure as a means of predicting performance

    • Who is right, Schumpeter or Arrow?

    • The problem and necessity of case-specific evidence

  • Innovation efforts and incentives

    • Incremental v. revolutionary

    • Nature of competition between innovations

  • Confidence that the reduction in innovation will lead to an output effect

  • Is the effect outweighed by innovation efficiencies?


Enough about economics. What about the law?

  • Does Section 7's focus on "line of commerce" of commerce doom innovation analysis?

  • Can a plaintiff prove a nonspeculative effect in a reasonable amount of time?

  • Burdens and do they really matter?

    • Burden of proof always on plaintiff

    • PNB/Baker Hughes, burdens of production, and the prima facie case


Problems of the investigator

  • Investigator has a duty to evaluate proposed transactions. If innovation is a key dimension of competition, then the investigator must deal with it

  • The law - with the state of economic theory - requires the investigator to prove all aspects of the case, including:

    • the innovation space in which the diminution will occur

    • the merger's likely effect on innovation

    • the manner in which output will be reduced

    • when the output effect will be felt

  • The importance of empirical evidence from the merging parties and the market cannot be overstated.


Suggested mode of analysis

  • Is innovation an important dimension of rivalry?

  • Will innovation affect existing product market in a reasonable amount of time?

    • competitive effects in a goods market

    • potential competition

  • Can the boundaries of the innovation market be determined?


Suggested mode of analysis (cont.)

  • Does the merger lessen incentives to innovate?

    • nature of competition between merging parties

    • nature of other downstream competition

    • efficiency analysis

  • Can harm to an output market be demonstrated?

    • future goods markets

    • future improvements to existing goods