A periodic feature by Cornerstone Research, in which our affiliated experts, senior advisors, and professionals, talk about their research and findings.
Matthew Lynde, head of Cornerstone Research’s intellectual property practice, co-chaired and moderated a panel at the 2nd annual IP & Antitrust California conference (24 May 2018), hosted by Global Competition Review (GCR). An authority on “fair, reasonable, and non-discriminatory” (F/RAND) royalties, Dr. Lynde has consulted on landmark cases across a range of jurisdictions and legal arenas. His testimony in Microsoft v Motorola Mobility provided the basis for the court’s determination of a F/RAND-compliant royalty.
Justin McCrary, of Columbia Law School, spoke on a panel to discuss emerging antitrust issues in high tech. A Cornerstone Research senior advisor, Professor McCrary is an expert on statistical methods and economic modeling at the intersection of law and economics.
We interviewed Dr. Lynde and Professor McCrary about the conference, its participants, and some of the key themes for the day.
Matt, you are co-chairing the event. Why is this conference significant?
ML: This is the second consecutive year that GCR has held an event in California focused on the intersection of IP and antitrust, and the regulations that arise in such matters. The California venue is appropriate, since intellectual property underpins so many high-tech and Silicon Valley deals and disputes. The conference will convene noted attorneys, in-house counsel, and academics, all of whom bring deep experience and a range of perspectives to these challenging issues. Interestingly, this conference continues the conversation begun at an earlier event, which Cornerstone Research co-hosted with the Stanford Institute for Economic Policy Research (SIEPR). At that conference, several of the same speakers on the GCR agenda tackled IP and antitrust enforcement topics. This latest gathering promises a similarly fruitful, lively discussion.
Walk us through some of the topics on the agenda.
ML: The agenda covers a range of issues that, though familiar to IP and antitrust specialists, remain in considerable flux and demand regular re-assessment. For example, we will cover the high-tech industry, where increasingly large high-profile mergers are occurring. Do they raise unique issues, or should they be analyzed like any other merger? Do mergers facilitate or thwart innovation? How do we tell the difference? Similar questions arise year to year, but the way we interpret and analyze them continues to evolve as the business landscape shifts. This evolution is one of the things that makes IP such a fascinating practice.
Justin McCrary, Paul J. Evanson Professor of Law at Columbia Law School, will also participate in the conference. He addresses the next two questions.
Justin, what do you expect to cover on your panel?
I am joining a panel focused on emerging antitrust issues in high tech. Among the current “hot button” topics we will cover is big data, which continues to attract enormous attention. More specifically, we will consider questions of regulation and enforcement as they relate to big data. How, for example, will enforcement agencies apply competition law principles to products/services that rely on big data? To what extent does the U.S. Department of Justice’s new perspective on antitrust affect innovation? What is the next frontier in reverse payment cases? I look forward to discussing these questions with Professor Hal Varian, also from UC Berkeley, as well other panelists.
Give us a snapshot of large IP portfolios and big data. What is the current state of play?
JM: A decade ago, complex, high-stakes matters typically involved analyzing datasets containing millions of records at most. Today, all that has changed. Datasets with billions of records are now common, and new questions are arising beyond those that relate to sheer size and scope. How are datasets accumulated? How are they deployed? And, crucially, who owns them? Often, data used to support expert consulting and testimony are derived from both public and private sources—a challenging mix that has sent big data spilling into the litigation sphere. As businesses amass and maintain ever-increasing amounts of potentially strategic information, issues of competition, strategic advantage, and barriers to entry will persist.
Dr. Lynde, you will moderate the final panel of the day, on international market power and licensing in IP-intensive industries. What are the big topics to consider?
ML: The final panel posits that United States is becoming a smaller part of the global competition and IP enforcement regime. Given this changing U.S. role, it is vital to think about how international enforcement agencies, both individually and collectively, will address antitrust and IP issues going forward. Many IP matters cut across borders, and can therefore have far-reaching, global implications. This panel will feature Yingling Wei, of JunHe in Beijing, and Arshad (Paku) Khan of Khaitan & Co. in New Delhi. They will provide Chinese, Indian, and European views on standard essential patent licensing, abuse of dominance with IP and private information, transnational merger reviews and remedies, and trade secret regulation.