The American antitrust enforcers cannot directly protect competition to innovate. In the cases in which they claimed that they have done so they have actually protected competition in Future Markets, markets for products which do not exist yet. After reviewing essentially all the cases in which not only the American enforcers, but also their European counterparts, claimed they directly protected competition to innovate, Lawrence B. Landman derived the Future Markets Model, the analytical tool competition authorities actually use when they protect competition in Future Markets.
The American enforcers have finally acknowledged that they protect competition in Future Markets; they did so in their new Merger Guidelines. And in Illumina v. FTC the Fifth Circuit, for the first time, held that an enforcer may protect competition in a Future Market.
The Fifth Circuit, however, did not identify any legal doctrine which it said allows courts to protect competition in Future Markets. Its decision therefore implicitly endorsed the new legal doctrine which Landman says court must use to protect competition in these markets. He calls this doctrine Future Potential Competition. When deciding if it should act to protect competition in a Future Market, Future Potential Competition asks the court to balance all appropriate variables; it should consider, for example, not just whether a product still in development is likely to exist in the future, but also how many firms are trying to develop comparable products.
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