Yesterday microsoft, today google: product designs in high-tech markets and challenges for competition law

High-tech markets differ markedly from most of the industries in which modern competition law and policy emerged. In these markets, firms often operate globally and their products can virtually be found all over the world. Although the markets may be global and free from national borders, applicable competition laws are mostly national or regional, meaning that high-tech firms might be subject to different jurisdictions pursuing potentially different objectives. In contrast to the prohibition of cartels and merger control, where there is a growing global convergence, there is substantial divergence on the appropriate scope of control that should be placed upon unilateral conduct. Ironically, most competition cases or investigations in high-tech markets involving global hightech giants, such as IBM, Microsoft, Google, Intel and Rambus, deal with unilateral conduct and allegations of abuse of market power. In the area of unilateral conduct, a more pressing concern arises when the conduct in question relates to how dominant high-tech firms design their products. Product designs appear to be the most controversial type of unilateral conduct to be challenged under competition law. Competition authorities and courts should not lose sight of the presence of actual consumer harm when ruling product designs as anticompetitive.