S H E A R M A N & S T E R L I N G L L P | 3 9
• intellectual property (IP) rights:
do the merging parties benefit from
extensive IP rights that reinforce their
market position? In Qualcomm/NXP
the EC accepted commitments to not
acquire certain standard essential
patents (SEP) and to not enforce/
grant worldwide royalties for other
SEPs to ensure rivals would be able to
compete fairly;
• significant other barriers to entry: do
the markets in question have a history
of new entrant failure? The EC may
view such a trend as conducive to anti-
competitive foreclosure; or
• network effects: do the merging
parties' products benefit from the
volume of other users? Network
effects can turn competitively neutral
conduct into conduct that is harmful
to competition. In Microsoft/LinkedIn,
the EC determined that LinkedIn's
network effects would likely amplify
the potential effects of Microsoft
preinstalling LinkedIn on its machines.
As a result, the parties entered into
behavioral commitments to preserve
an effective choice of installation for
five years.
CONCLUSION
As markets become more concentrated,
the scope for conglomerate concerns will
only increase. Consistent with the trend
that the EC will flexibly adapt traditional
theories of harm when investigating
mergers, this is something companies
should consider carefully when
contemplating future acquisitions.
I N T E R O P E R A B I L I T Y
H A S B E E N A K E Y
F O C U S O F R E C E N T
C O M M I T M E N T S
