Thursday, December 28, 2006

2000 US Horizontal Collaboration Guidelines

The "new" rule of reason under the US Horizontal Collaboration Guidelines is applicable to agreements between competitors in high-tech industries, although there is some discussion about the role of dynamic efficiencies. Carl Shapiro has argued that intellectual property law and antitrust law are not in conflict but are complementary in achieving dynamic efficiencies. It is worth examining the history of the rule of reason in the United States, because antitrust law has been thought of as achieving static efficiencies by the Chicago School. In particular, until the 1979 BMI decision of the US Supreme Court, the rule of reason had remained distinct from conduct such as prixe-fixing ancillary to joint ventures which had been held illegal per se. The BMI decision was the start of the development of a "truncated" rule of reason, which evolved through the 1986 NCAA decision and more recently the California Dental Association case. Eventually, the combination of these decisions led to the adoption of the 2000 US Horizontal Collaboration Guidelines. As high-tech industries increasingly become issues for antitrust, it is important for the "new" rule of reason to be adaptable to dynamic efficiencies; despite the problem of a criteria in relation to dynamic efficiencies, there have been some solutions proposed, in particular the consumer welfare test in relation to patent settlements proposed by Carl Shapiro. These principles could be introduced into Korea through the revision of the KFTC Horizontal Collaboration Guidelines which are somewhat out of date and have falled into disuse.

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