The fourth component of the Hoover Project on Commercializing Innovation studies market structure and performance in assessing how antitrust regimes can best promote competition. For example, recent actions in the European Union as well as the United States at the interface between antitrust and intellectual property have demonstrated the way flexible enforcement of antitrust can suffer the Achilles Heel of being too responsive to interest group lobbying, if not fashion. The purpose of antitrust laws is to protect against a large player dominating a market through unreasonable restraints on competition to cause higher prices or lower quality goods and services. But a company’s dominant market share is not, alone, anticompetitive. Sound theory and practice teaches regulators to instead focus on whether the company’s behavior causes actual economic harm to consumers. This requires regulators to consider tough questions of technology and economics.
Note: Having been nominated by President Barack H. Obama, and confirmed by the Senate, to serve as a Commissioner at the U.S. International Trade Commission, F. Scott Kieff swore into and took up his government post on October 18, 2013, after stopping his work for and resigning all of his roles at Stanford University’s Hoover Institution, which included having served as Ray & Louise Knowles Senior Fellow at Hoover; as Director and Member of the Research Team of the Hoover Project on Commercializing Innovation; as Member of the Steering Committee and Research Team of the Hoover Working Group on Intellectual Property, Innovation, and Prosperity; and as Member of the John and Jean De Nault Task Force on Property Rights, Freedom, and Prosperity; and after also taking a leave of absence from his post as Fred C. Stevenson Research Professor at the George Washington University Law School.
Selected works on Antitrust:
- The FTC, IP, and SSOs: Government Hold-up Replacing Private Coordination, 8 J.C.L. & Econ. 1(2012), Richard A. Epstein, F. Scott Kieff, and Daniel F. Spulber.
- Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents, University of Chicago Law & Economics Olin Working Paper No. 527, Richard A. Epstein and F. Scott Kieff.
- Innovation and the Limits of Antitrust, 6 Journal of Competition Law & Economics 153 (2010). Geoffrey A. Manne and Joshua D. Wright.
- The FTC’s Misguided Rationale for the Use of Section 5 in Sherman Act Cases, 2 CPI Antitrust Chronicle (2010). Geoffrey A. Manne.
- Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup,Journal of Competition Law and Economics (forthcoming), Bruce H. Kobayashi and Joshua D. Wright.
- Why the Supreme Court was Correct to Deny Certiorari in FTC v. Rambus, George Mason Law & Economics Research Paper No. 09-14, Joshua D. Wright.
- Quanta v. LG Electronics: Frustrating Patent Deals by Taking Contracting Options off the Table?, 2007/2008 Cato Sup. Ct. Rev 315 (2008), F. Scott Kieff.
- Missed Opportunities in Independent Ink, 2006 Cato Sup. Ct. Rev. 333 (2006), Joshua D. Wright
- Coordination, Property & Intellectual Property: An Unconventional Approach to Anticompetitive Effects & Downstream Access,56 Emory Law Journal 327 (2006). F Scott Kieff.
- IP Transactions: On the Theory & Practice of Commercializing Innovation, 42 Houston Law Review 727 (2005), F. Scott Kieff.
- Hot Docs vs. Cold Economics: The Use and Misuse of Business Documents in Antitrust Enforcement and Adjudication, 47 Arizona Law Review 609 (2005) Geoffrey A. Manne and E. Marcellus Williamson.
- The Basics Matter: At the Periphery of Intellectual Property, 73 George Washington Law Review 174(2004), F. Scott Kieff and Troy A. Paredes. Also published in Developments in the Economics of Copyright: Research and Analysis (Lisa N. Takeyama et al. eds., Edward Elgar) (2005).
- Regulating Innovation: Competition Policy and Patent Law Under Uncertainty, Cambridge University Press (forthcoming 2010) (Geoffrey A. Manne and Joshua D. Wright, eds.).
- The FTC’s Proposal for Regulating IP through SSOs Would Replace Private Coordination with Government Hold-Up, Submitted in Response to the FTC’s Request for Comments and Announcement of Workshop on Standard--Setting Issues, Project No. P111204, Aug. 5, 2011. Richard A. Epstein, F. Scott Kieff, and Daniel F. Spulber.
- Comment on Intellectual Property, Concentration and the Limits of Antitrust in the Biotech Seed Industry, filed with the Department of Justice Antitrust Division on December 31, 2009, as “Comments Regarding Agriculture and Antitrust Enforcement Issues in Our 21st Century Economy” in response to the DOJ/USDA request for public comments for the agencies’ joint workshops on antitrust issues in the agricultural sector. F. Scott Kieff, Geoffrey A. Manne, Michael E. Sykuta, Joshua D. Wright.
- The Return of “Big is Bad”, The Deal Magazine (May 26, 2009) Keith N. Hylton, Geoffrey A. Manne, and Joshua D. Wright.
- US Antitrust Becomes More European, Forbes.com (May 18, 2009) Keith N. Hylton, Geoffrey A. Manne, and Joshua D. Wright.
- Microsoft’s European Experience Troubling for U.S. Companies, Opinion, San Jose Mercury News, March 15, 2007, at 12A, Stephen H. Haber, F. Scott Kieff, and Troy A. Paredes.
- A Keiretsu Approach to Patents, Intellectual Asset Management, Feb./Mar. 2007, at 51, F. Scott Kieff.
- Public Choice, Patents, and the FTC: Comments on the Commission’s October 2003 Report on the Interface Between Patents and Antitrust, 5 Engage 84 (2004), F. Scott Kieff.
- Patent Application as an Abuse of Dominant Market Position under Article 82 EC Treaty? presented at the Slovenian Intellectual Property Office in Ljubljana on January 14, 2010 by Joseph Straus.
- Property Rights in Intellectual Property: Impacts on Innovation and Competition, presented by F. Scott Kieff on September 22nd, 2008 at the Meeting of the Gathering 1.0 in Palo Alto.
- F. Scott Kieff, Presentation, “Protecting Software-Related Inventions in the United States: Evolution by the Courts” at AIPPI in Boston (Sept. 10, 2008)
- On the Importance of Property Rights in Intangibles like IP to Access, Competition, and Economic Development by F. Scott Kieff, presented to seminars Melbourne and Sydney and a conference in Singapore in Feb-Mar 2008.
- First Microsoft, Now Google: Does the Government Have it in for Consumers?, CNET News, July 2, 2011, Geoffrey A. Manne, Berin Szoka, and Joshua D. Wright.
- United States Federal Trade Commission and Department of Justice Antitrust Division Joint Hearings on Competition and Intellectual Property (Apr. 10, 2002). Transcript. Invited testimony of F. Scott Kieff.
- Comments Regarding Competition and Intellectual Property – Summary of Proposed Testimony, this submission was the basis for the invitation to present further oral testimony. F. Scott Kieff.