Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/9

 for work around innovators), we must also protect the incentives of parties to compete with the original innovator.

Moreover, from a doctrinal standpoint, I’m not sure the rule of reason is all it’s cracked up to be. Professor Hovenkamp (one of the principal champions of a full-blown rule of reason) may know how to “weigh” anticompetitive effects and procompetitive effects, but I sure don’t. The Supreme Court rarely applies the rule of reason and provides no guidance on how to weigh rule of reason considerations more generally—a fact that is underscored by the appellate courts’ own disarray. Indeed, even the D.C. Circuit’s decision in Microsoft —arguably the most sophisticated Section 2 decision on the books – didn’t explain very well how to weigh anticompetitive effects against procompetitive effects or how to decide which prevails. So, to put it bluntly, I’m not persuaded that applying the rule of reason to all conduct by innovators—simply because they are innovators—would result in anything more than additional discord (as opposed to certitude) for the business community.

A fifth challenge I have heard concerns innovation more generally. In the 30 years since the consent in Xerox, the agencies have never litigated to conclusion a