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Restoring Consumer SovereigntyHow Markets Manipulate Us and What the Law Can Do About It$
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Adrian Kuenzler

Print publication date: 2017

Print ISBN-13: 9780190698577

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780190698577.001.0001

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From Market Access to Cumulative Innovation

From Market Access to Cumulative Innovation

(p.221) 6 From Market Access to Cumulative Innovation
Restoring Consumer Sovereignty

Adrian Kuenzler

Oxford University Press

This chapter argues for a reinvigorated role of the market access doctrine and references a number of important antitrust and intellectual property law decisions in which courts have given priority to market access. It finds a novel function for market access to play within antitrust and intellectual property law liability: courts that grant plaintiffs access to a defendant’s production output should refer to a three-step test under which they inquire (1) whether the inventor, through first-mover advantages, has reaped a sufficient reward such that contractual or intellectual property rights protection would no longer be required to facilitate innovation, (2) whether competitors were able to challenge the proprietary platform’s position in the market without the possibility of granting access, and (3) whether competitors seeking to benefit from market access will make use of it to facilitate the introduction of new goods rather than merely to copy the initial invention.

Keywords:   market access, opportunities to compete, output/profitability standard, essential facilities, entry barriers, three-step test, emotional harm, cumulative innovation

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