U.S. Department of Justice and FTC Issue New Antitrust Guidelines for Licensing of Intellectual Property

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On January 12, 2017, the United States Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued new Antitrust Guidelines for the Licensing of Intellectual Property. The new guidelines replace the guidelines issued in 1995 and cover antitrust enforcement policy of the agencies relating to the licensing of intellectual property protected by patent, copyright and trade secret law, and of know-how.

Although the same general antitrust principles that apply to other forms of intellectual property apply to trademarks, these Guidelines do not cover the antitrust treatment of trademarks. Rather they deal with technology transfer and innovation-related issues that typically arise with respect to patents, copyrights, trade secrets, and know-how agreements, rather than with product-differentiation issues that typically arise with respect to trademarks.

By stating their general policy, the DOJ and FTC hope to assist those who need to predict whether the agencies will challenge a practice as anticompetitive.

The new guidelines embody three general principles for the purpose of antitrust analysis:

  1. The agencies apply the same analysis to conduct involving intellectual property as to conduct involving other forms of property, taking into account the specific characteristics of a particular property right;
  2. The agencies do not presume that intellectual property creates market power in the antitrust context; and
  3. The agencies recognize that intellectual property licensing allows businesses to combine complementary factors of production and is generally procompetitive.

To read the full guidelines, please click here

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