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This Week in Antitrust

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Here’s another installment in ACT’s weekly review of antitrust news articles of note. This week we feature Monsanto’s on-going battle to disprove DuPont’s claim of the seed maker’s “monopolistic” behavior, an Ohio-based company’s court-ordered scrutiny of Google’s AdWord service, Intel’s assurance that the Federal Trade Commission’s antitrust lawsuit is “misguided” and a report on the decline of Microsoft’s Internet Explorer web browser after the implementation of a browser ballot in Europe.

Monsanto – The Seeds Of An Antitrust Disaster In Iowa | Forbes.com

Geoffrey Manne, Executive Director of the International Center for Law & Economics and Lecturer in Law at Lewis & Clark Law School, takes a closer look at inquiries being made into Monsanto’s seed business and discovers that the company’s contracts with purchasers of its genetically-modified seed stock are carefully negotiated to allow the purchase any intellectual property (IP) rights that the purchaser desires and he suggests DuPont’s claims “that Monsanto uses certain clauses in its licenses to prevent manufacturers from combining—or ‘stacking’—Monsanto’s seed” are unfounded.

Monsanto’s detractors have failed to demonstrate that its conduct harms competition. And meanwhile, its competitors—especially DuPont—continue to gain market share and to invest heavily in competing technology. In fact, in contrast to the claims it seems to be making to antitrust enforcers, in public filings and statements DuPont presents evidence of a robust, competitive industry. DuPont’s CEO, Ellen J. Kullman, recently told investors and analysts that the industry is in “an incredibly competitive period,” and the company gained market share in both the corn and soybean seed markets last year. This doesn’t sound like a market constrained by a rapacious monopolist.

Manne will be covering related news at a related event today where “the Antitrust Division will join the U.S. Department of Agriculture in the first of a yearlong series of workshops focusing on competition in the agricultural sector.” There’s sure to be plenty of hot, legal action as Monsanto and DuPont assert their positions on the business of genetically-modified seeds.

IBM – IBM on antitrust defense in Europe | ZDNet

Dana Blankenhorn reports on a French software company’s complaint that IBM is acting unfairly by blocking the use of competing programs on its mainframe computers. He writes:

By tying use of its mainframe software to IBM hardware, TurboHercules charges, IBM is preventing open source from competing. The company’s complaint said it tried to do business with IBM last year, but was met by an intellectual property complaint.

The U.S. Justice Department has been investigating IBM’s mainframe business since last year, but given the EU’s recent $1.45 billion fine against Intel, its antitrust regulators are now feared more than their U.S. counterparts.

This case may go deeper, however. IBM has become recognized as an open source leader. You can argue that open source saved IBM, allowing it to unify product lines under Linux, offload development costs, and create new alliances.

IBM is no stranger when it comes to cries of unfair market practices but as the company is one of the major users and integrators of open source software, it is hard to imagine that TurboHercules’ claims will fall on sympathetic ears, even if they happen to be European ones.

Google AdWord – Google Must Answer Questions About Ad System | NationalJournal.com

If Google *were* hiding behind some kind of magical curtain, the man behind the curtain is about to be revealed. That is, if the man can be said to be Google’s extremely profitable, and at times, controversial, AdWord service. Neil Munro enlightens the gentle reader on this new twist that recalls dreams of being naked on stage before an un-admiring audience:

A small online-mall firm has won an Ohio judge’s approval to inspect the inner workings of Google’s closely-held online advertising software, which its high-tech rivals say is illegally rigged to help Google and hurt its competitors.

The decision Wednesday by Franklin County Common Pleas Judge John Bessey rejecting Google’s plea to delay discovery “gives us an opportunity to start gathering the evidence and documents that we need to prove our case… there’s no limits on what we can ask for” except relevance, said Joseph Bial, a D.C.-based special counsel in the antitrust group at New York-based Cadwalader, Wickersham & Taft representing Ohio-based myTriggers.com.

“Discovery will commence immediately,” he said.

“No limits for what we can ask for,” they say? Are there limits to what Google will have to provide in response to this limitless probing? This whole dog-and-pony show might just be a pretense for more mischievous machinations. Monro details the needful wishes of Google’s competitors:

The Ohio court case is significant because competing high-tech companies are hoping that Google becomes the target of a federal antitrust case. The company’s popular software makes it the market leader in the online advertising sector, but advocates for other companies — including Microsoft — say it is illegally abusing its market power.

Well, Microsoft should know a thing or two being accused of “illegally abusing its market power” and have, no doubt, already penned up a very long (and helpful) amicus brief for submission at the first possible (in?)convenient opportunity. Excellent stuff! Be sure to read what Google has to say about the claims by reading the entire piece at the link above.

Microsoft – Microsoft Browser Use Down Following Antitrust Settlement | redOrbit

After agreeing to create a web browser ballot for its European Windows OS users as a term of its EU antitrust case loss, Microsoft is seeing a disturbing trend in the installation of its Internet Explorer web browser application. The decrease in the popularity of Microsoft’s Internet Explorer is not great, but it could pick up steam as users become more aware that there are many other options to chose from via the ballot.

Internet Explorer use has decreased in Britain by 1-percent, Italy by 1.3-percent, and France by 2.5-percent, according to information provided to Reuters by Statcounter, a web statistics provider. Meanwhile, Opera Software reports that usage of their web browser has doubled across the continent, and tripled in select areas, including Italy, Poland, and Spain.

The shift in Internet browser popularity is due largely to the launch of browserchoice.eu, a website established by Microsoft in response to antitrust accusations levied by the European Union.

The site, which is being automatically displayed for more than 200 million users in select locations throughout Europe, shows Microsoft’s own Internet Explorer alongside some of its top competitors, including Safari, Google Chrome, Opera Turbo, and Mozilla Firefox.

The makers of the FireFox web browser are seeing increases in the number of people installing their software via the mandated browser and the company has been quoted as saying, “We expect these numbers to increase as the Ballot Choice screen fully rolls out across all countries.”

Intel – Intel: FTC antitrust lawsuit is ‘misguided’ | ZDNet

Intel continues to defend itself against an ever-increasing litany of unfair practices in the computer chip market, and now has to add graphics processing units (GPUs) to the list of products that are of interest to the FTC. Matthew Broersma has more on this growing morass of intellectual property troubles for Intel:

“The FTC’s case is misguided. It is based largely on claims that the FTC added at the last minute and has not investigated,” the chipmaker said in a statement on Wednesday. “Intel has competed fairly and lawfully. Its actions have benefited consumers.”

The company said it had progressed “very far” in talks to settle the case, rather than bring it to court. However, the FTC had asked for remedies that would have made it “impossible” for Intel to conduct business, according to the chipmaker.

“This case could have, and should have, been settled,” said Intel senior vice president and general counsel Doug Melamed in a statement. “The FTC’s rush to file this case will cost taxpayers tens of millions of dollars.”

Rival GPU manufacturer NVIDIA is firmly behind the FTC’s on-going investigation of Intel’s business practices in the graphic chip marketplace and will certainly be watching the case closely as many hundreds of millions in profit hand in the balance.