Innovation in EU competition law

The resource-based view and disruption

    Research output: Working paperOther research output

    Abstract

    Innovation has so far been handled by competition law according to market structure, that is to say, assuming that market power allows undertakings to evade competitive pressure including those which spur innovation on. This structural approach has fitted innovation in a tried-and-tested analytical and normative framework. Its limits have nonetheless become apparent as competition law is increasingly hemmed by a static outlook and called to apply to harm to innovation unrelated to market power. As such, this paper proposes complementing a structural approach with two advances from strategic management studies.

    The first advance is the ‘resource-based view’, which connects competitive advantage with undertaking heterogeneity. Since undertakings do not have the same innovation capabilities, competitive markets may not compensate the exclusion of innovators. Harm to innovation is thus centred on assets with innovation capabilities, as shown by cases of abusive refusal to licence and parallel research. Competing claims over these assets are to be resolved based on the differences in capabilities, and whether intervention affects competitive advantage and not just intellectual property rights.

    The second advance is the theory of disruptive innovation, which explains major
    changes in consumer preferences and production methods. Strategic management has established that an inefficient start is an integral part of disruption, allowing disruptors to be ignored until their productive efficiency increases enough to shift the market. This contrasts with competition law’s assumption that the exclusion of less efficient competitors is beneficial for market structure. Competition law must therefore adapt to strategies against disruption which do not immediately degrade competitive parameters.
    Original languageEnglish
    Number of pages52
    Publication statusPublished - 15 Jan 2018

    Publication series

    NameJean Monnet Working Paper Series
    PublisherNYU School of Law
    No.2
    Volume17

    Fingerprint

    Resource-based view
    Competition law
    Disruption
    Innovation
    Competitive advantage
    Market power
    Innovation capability
    Structural approach
    Assets
    Exclusion
    Market structure
    Strategic management
    Innovators
    Production methods
    Competitors
    Integral
    Disruptive innovation
    Consumer preferences
    Competitive market
    License

    Cite this

    Costa-Cabral, F. (2018). Innovation in EU competition law: The resource-based view and disruption. (Jean Monnet Working Paper Series; Vol. 17, No. 2).
    @techreport{5abf56dad24d46c0a98bb836d593dbb3,
    title = "Innovation in EU competition law: The resource-based view and disruption",
    abstract = "Innovation has so far been handled by competition law according to market structure, that is to say, assuming that market power allows undertakings to evade competitive pressure including those which spur innovation on. This structural approach has fitted innovation in a tried-and-tested analytical and normative framework. Its limits have nonetheless become apparent as competition law is increasingly hemmed by a static outlook and called to apply to harm to innovation unrelated to market power. As such, this paper proposes complementing a structural approach with two advances from strategic management studies.The first advance is the ‘resource-based view’, which connects competitive advantage with undertaking heterogeneity. Since undertakings do not have the same innovation capabilities, competitive markets may not compensate the exclusion of innovators. Harm to innovation is thus centred on assets with innovation capabilities, as shown by cases of abusive refusal to licence and parallel research. Competing claims over these assets are to be resolved based on the differences in capabilities, and whether intervention affects competitive advantage and not just intellectual property rights.The second advance is the theory of disruptive innovation, which explains majorchanges in consumer preferences and production methods. Strategic management has established that an inefficient start is an integral part of disruption, allowing disruptors to be ignored until their productive efficiency increases enough to shift the market. This contrasts with competition law’s assumption that the exclusion of less efficient competitors is beneficial for market structure. Competition law must therefore adapt to strategies against disruption which do not immediately degrade competitive parameters.",
    author = "Francisco Costa-Cabral",
    year = "2018",
    month = "1",
    day = "15",
    language = "English",
    series = "Jean Monnet Working Paper Series",
    publisher = "NYU School of Law",
    number = "2",
    type = "WorkingPaper",
    institution = "NYU School of Law",

    }

    Costa-Cabral, F 2018 'Innovation in EU competition law: The resource-based view and disruption' Jean Monnet Working Paper Series, no. 2, vol. 17.

    Innovation in EU competition law : The resource-based view and disruption. / Costa-Cabral, Francisco.

    2018. (Jean Monnet Working Paper Series; Vol. 17, No. 2).

    Research output: Working paperOther research output

    TY - UNPB

    T1 - Innovation in EU competition law

    T2 - The resource-based view and disruption

    AU - Costa-Cabral, Francisco

    PY - 2018/1/15

    Y1 - 2018/1/15

    N2 - Innovation has so far been handled by competition law according to market structure, that is to say, assuming that market power allows undertakings to evade competitive pressure including those which spur innovation on. This structural approach has fitted innovation in a tried-and-tested analytical and normative framework. Its limits have nonetheless become apparent as competition law is increasingly hemmed by a static outlook and called to apply to harm to innovation unrelated to market power. As such, this paper proposes complementing a structural approach with two advances from strategic management studies.The first advance is the ‘resource-based view’, which connects competitive advantage with undertaking heterogeneity. Since undertakings do not have the same innovation capabilities, competitive markets may not compensate the exclusion of innovators. Harm to innovation is thus centred on assets with innovation capabilities, as shown by cases of abusive refusal to licence and parallel research. Competing claims over these assets are to be resolved based on the differences in capabilities, and whether intervention affects competitive advantage and not just intellectual property rights.The second advance is the theory of disruptive innovation, which explains majorchanges in consumer preferences and production methods. Strategic management has established that an inefficient start is an integral part of disruption, allowing disruptors to be ignored until their productive efficiency increases enough to shift the market. This contrasts with competition law’s assumption that the exclusion of less efficient competitors is beneficial for market structure. Competition law must therefore adapt to strategies against disruption which do not immediately degrade competitive parameters.

    AB - Innovation has so far been handled by competition law according to market structure, that is to say, assuming that market power allows undertakings to evade competitive pressure including those which spur innovation on. This structural approach has fitted innovation in a tried-and-tested analytical and normative framework. Its limits have nonetheless become apparent as competition law is increasingly hemmed by a static outlook and called to apply to harm to innovation unrelated to market power. As such, this paper proposes complementing a structural approach with two advances from strategic management studies.The first advance is the ‘resource-based view’, which connects competitive advantage with undertaking heterogeneity. Since undertakings do not have the same innovation capabilities, competitive markets may not compensate the exclusion of innovators. Harm to innovation is thus centred on assets with innovation capabilities, as shown by cases of abusive refusal to licence and parallel research. Competing claims over these assets are to be resolved based on the differences in capabilities, and whether intervention affects competitive advantage and not just intellectual property rights.The second advance is the theory of disruptive innovation, which explains majorchanges in consumer preferences and production methods. Strategic management has established that an inefficient start is an integral part of disruption, allowing disruptors to be ignored until their productive efficiency increases enough to shift the market. This contrasts with competition law’s assumption that the exclusion of less efficient competitors is beneficial for market structure. Competition law must therefore adapt to strategies against disruption which do not immediately degrade competitive parameters.

    M3 - Working paper

    T3 - Jean Monnet Working Paper Series

    BT - Innovation in EU competition law

    ER -