Remedies to Exclusionary Innovation in the High-Tech Sector: Which Lesson from the Microsoft Saga?

In the high-tech sector innovative behaviour may have exclusionary effects: In both the Microsoft III and IV cases exclusionary practices centred on innovation were deemed generating both anti- and pro-competitive effects—with the latter overcoming the former—to the extent of requiring an antitrust law intervention. Such intervention presents two problems though. Firstly, the question arises as to when innovation becomes detrimental to competition thereby requiring antitrust remedies to be applied. Secondly, it is to assess how antitrust remedies should be designed in order not to stifle the pro-competitive effects that innovative behaviour, although exclusionary, still generate. This article addresses both issues above mentioned. The potentially exclusive nature of innovation is the starting point to explore the interface between remedies on the one hand, and (incentives to) innovation on the other, in order to offer considerations on a sound remedies policy