Forcing Exclusivity On Your Customers May Not Be The Best Competitive Response

In the words of the director of the Federal Trade Commission's (FTC's) Bureau of Competition, the recent enforcement against Invibio, Inc., the first company to sell implant-grade polyetheretherketone, known as PEEK, to medical device makers, "affirms that the first company to enter a market cannot rely on anticompetitive contract terms to lock up customers and box out rivals." But what if you are not the first company to enter the market? More on that below, but first, what exactly did Invibio do when faced with new rivals?

According to the FTC's administrative complaint, Invibio responded to new rivals seeking to sell PEEK at lower prices by adopting a strategy of expanding the scope and coverage of exclusivity terms in its own PEEK supply contracts. Concerned that if it did not block these new rivals, it would be forced to engage in painful price competition, Invibio implemented its exclusivity strategy through negotiations with existing and potential customers.