Predatory Innovation: A Response to Suzanne Van Arsdale & Cody Venzke

Abstract

Predatory innovation – which is defined as the alteration of one or more technical elements of a product to limit or eliminate competition – is arguably one of the most important subjects faced by antitrust law in the context of the New Economy. It encompasses all practices that, under the appearance of genuine innovations, are anti-competitive strategies (Sherman Act Section 2 or 102 TFEU) aimed at eliminating competition. The objective is to remove the compatibility of third party technologies with a dominant firm’s product, or to impair competing technologies’ operations. Very few literature deals with predatory innovation, and yet, the significance that digital technologies have taken in our everyday life implies that related anti-competitive practices might affect a great number. Predatory innovation practices are particularly propitious to spread rapidly to the extent that they may appear with any updates, which sometimes are installed without the user’s consent. On this basis, Suzanne Van Arsdale & Cody Venzke had published an article entitled “Predatory Innovation in Software Markets” in the Harvard Journal of Law & Technology (2015). Most predatory innovation related issues are well identified but the Article proposes the implementation of a specifically designed legality test — to address whether related practices should be sanctioned — which has numerous flaws. This note intends to show that the rules proposed by Van Arsdale & Venzke should be rejected and offers a broader perspective on how to deal with predatory innovation practices.