The “Enhanced no Economic Sense” Test: Experimenting with Predatory Innovation

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This paper originates from a long-standing anachronism of antitrust law with regard to high-tech markets. Conventional wisdom assumes that antitrust law mechanisms are well suited to the study of practices in technology markets and that only adjustments should be made to these mechanisms, and sparingly at that. This is untrue. Several practices fall outside the scope of antitrust law because mechanisms for assessing the legality of practices are not adequate.In fact, no one can accurately identify a typical legal approach for non-price strategies, a truth which gives way for a chaotic jurisprudence to emerge from this lack of universal understanding, which we will show. With this paper, our ambition is to contribute to the literature by advancing anew test, the “enhanced no economic sense” test, to be applied to non-prices strategies.