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Dissertation
Immaterialgüter- und Wettbewerbsrecht

Protecting Innovation Competition in Merger Review: A Comparative Assessment of different Theoretical Approaches

The relevant competitors in regard to innovation might, but not necessarily do, correspond to the competitors on actual product markets. Hence, the purpose of this project is to introduce and compare the existing alternative approaches which can be used for the assessment of anticompetitive innovation effects in merger review.

Last Update: 01.12.12

In merger review competition authorities traditionally tend to focus on the assessment of competition on relevant product markets. Hereby, the firms which compete with one another are identified and possible anticompetitive effects get revealed. However, the relevant competitors in regard to innovation might, but not necessarily do, correspond to the identified competitors on actual product markets. Hence, the conventional analysis of product markets, in order to assess the potential anticompetitive effects of mergers, is insufficient to capture innovation competition in its full extent. As a consequence, the aim of this project is to review the (existing) approaches which can generally be employed for the assessment of anticompetitive effects on innovation in merger control. This analysis will be illustrated by the introduction of several, exemplary merger cases. Since the debate on these approaches was taking place primarily in the U.S. and due to the fact that only the U.S. antitrust agencies applied the whole spectrum of these approaches, it will be focused primarily on mergers analyzed by the Department of Justice (DoJ) and the Federal Trade Commission (FTC). Subsequently, the findings of the analysis will be discussed, bearing in mind the question: What can be learned from the debate on - and the experiences with these approaches? By explicitly considering the question whether these approaches are equally effective with respect to the consideration of innovation competition, the advantages and disadvantages of the different approaches will be revealed. To conclude, the results of the comparative analysis will be summarized and several key components, which could function as the basic structure for the development of a revised framework for the assessment of innovation competition, will be deduced.

Persons

Doctoral Student

Benjamin René Kern

Supervisor

Dr. Mark-Oliver Mackenrodt

Doctoral Supervisor

Prof. Dr. Wolfgang Kerber

Main Areas of Research

Innovationswettbewerb