The Soviet system of knowledge production based on cooperation, knowledge sharing, but also intense competition was already an inspiration for innovation policymakers in the U.S. and in Europe back in the 1950 and 1960s. Nowadays, as the global economy is moving towards a new mode of production, the Soviet case may still play an important role to help to frame a better institutional approach to innovation. With the dramatic challenges already brought by the fourth industrial revolution and the tectonic economic and social shifts it is expected to cause around the world, the Soviet case with all its pros and cons is becoming more and more relevant for this debate as it provides necessary empirical data to consider other institutional approaches to innovation distinct from the established property-focused model. In this context, intellectual property and competition law scholars hopefully would better understand the Soviet innovation system through further academic studies.
In both the US and the EU, the antitrust category of “sham litigation” (in the US) or “vexatious litigation” (in the EU) enables a plaintiff, or a defendant in case this action forms part of a counterclaim, to argue that the introduction of litigation may constitute, under certain conditions, an infringement of competition law. This naturally leads to the question of what is a workable standard for establishing the existence of sham litigation, and how it is possible to distinguish between the legitimate use of the regulatory/litigation process and strategic attempts to use the process in order to restrict competition. Legal and economic literature, as well as the courts, have struggled to define operational tests enabling them to determine the boundaries of the “sham”/“vexatious” litigation antitrust category. The paper examines the intellectual underpinnings of this form of abusive/anticompetitive conduct and puts forward a “mechanism design approach” with the aim to reduce the occurrence of sham litigation.