FTC gets back to Hypothetical Monopolist Test.
— Florian Mueller (@FOSSpatents) June 29, 2023
Judge: sorry to go back, I get it if you have to buy it that makes perfect sense, but we're talking about where they already own it
🧵56/X
FTC says it has law and fact argument. Claims that its approach is the one under the law. Actually the HMT is not prescribed by the law or anything. Now talking about there being no evidence that people would buy one device instead of the other.
— Florian Mueller (@FOSSpatents) June 29, 2023
🧵58/X
MSFT's Wilkinson: we're not in a horizontal merger test, that's what the test is designed for. Here because it's a vertical merger ... it's about where they play the games -- the games, not the consoles, if they lose the games.
— Florian Mueller (@FOSSpatents) June 29, 2023
🧵60/X
Judge: let me then ask you about Nintendo... and trying to figure out why Xbox offers that Xbox S at that price point...?
— Florian Mueller (@FOSSpatents) June 29, 2023
🧵62/X
Judge: when they go to Best Buy and it's on the shelf and they got PS, Xbox, Nintendo Switch, and I look at it and can get this entry into the Gen9
— Florian Mueller (@FOSSpatents) June 29, 2023
FTC: in November 2020 priced the Xbox S it wasn't about matching Switch price but about getting users into their Gen9
🧵64/X
FTC says lots of things compete, but the legal focus must be on where competition matters. Where is the locus of competition where the effects of this deal will be felt.... not sufficient to say in lay term you can walk into the store and see it.
— Florian Mueller (@FOSSpatents) June 29, 2023
🧵66/X
FTC says price is one dimension of competition, but those devices don't do the same thing. Radically different form factors.
— Florian Mueller (@FOSSpatents) June 29, 2023
Judge Corley: connect to TV and play the same games, many of the same games
🧵68/X
Judge wants to know if there's evidence re. pricing.
— Florian Mueller (@FOSSpatents) June 29, 2023
Wilkinson that it's not true that they did not compare. And most important: Dr. Bailey's chart shows all the similar games available. The most popular games are on both.
🧵70/X
Judge Corley: I think there was evidence of titles exclusive to Nintendo.
— Florian Mueller (@FOSSpatents) June 29, 2023
Wilkinson: both PS and Nintendo have many more exclusives than the Xbox
FTC says Nintendo strategy is Zelda and Mario only on Nintendo
🧵72/X
Essay Pro