The debate over whether competition or monopolies give rise to innovation is ongoing. Competition across industries provides firms with a “powerful motive” to innovate given that the most immediate beneficiaries are the firms themselves. Some have used this theory to contend that monopolists are bound to innovate as they are able to recoup investments into research and development, maintain market share, and exclude entrants. Alternatively, others have used the theory to argue that competition begets innovation, given that developing a new product grants monopoly profits to the first mover in a competitive market. The innovation standard in antitrust law has evolved as this debate has gone on, moving from a presumption of legality for any new innovation to a focus on the effects an innovation has on the consumer.

Most recently, in the product-hopping context, the Second Circuit has held that a “hard switch,” which removes the original product from the market forcing consumers to switch, is anticompetitive because it interferes with consumer choice. On the other hand, the court has left the door open for analysis of a “soft switch,” which allows a consumer to still obtain the original product or a modest reformulation. Looking to the legal standards applied in the most pivotal cases on attempted monopolization in the context of a new product, this article finds that a soft switch may be anticompetitive under certain standards. First, I propose that a soft switch would pass muster under the most permissible standard found in Kodak, which allows for the market to determine which product is better regardless of objective improvements. Second, I propose that a soft switch would not pass muster if it can be proven that advertising has been used as a coercive tool under the structured reasonableness standard proposed in Microsoft, which condemns a soft switch if the anticompetitive harm of the conduct outweighs the procompetitive benefit. Third, and finally, I propose that the manipulation of the patent system to obtain weak patents on the ancillary aspects of the drug is enough to constitute a Section 2 violation under the additional conduct standard put forth in Actavis, which requires a combination of conduct to condemn a soft switch.

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