These Guidelines state the antitrust enforcement policy of the DOJ and FTC ("Agencies") with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law, and of know-how. By stating their general policy, the Agencies hope to assist those who need to predict whether the Agencies will challenge a practice as anticompetitive. However, these Guidelines cannot remove judgment and discretion in antitrust law enforcement. Moreover, the standards set forth in these Guidelines must be applied in unforeseeable circumstances. Each case will be evaluated in light of its own facts, and these Guidelines will be applied reasonably and flexibly.
The Guidelines note that the intellectual property and antitrust laws "share the common purpose of promoting innovation and enhancing consumer welfare" and enumerate three principles relevant to an antitrust analysis involving intellectual property.
- First, intellectual property is comparable to any other form of property.
- Second, intellectual property does not create a presumption of market power in the antitrust context.
- Third, "intellectual property licensing allows firms to combine complementary factors of production and is generally pro-competitive."
- Finally, the Guidelines make clear that the enforcement agencies will “apply the same general antitrust principles to conduct involving intellectual property that they apply to conduct involving any other form of tangible or intangible property.”
The Guidelines continue the antitrust approach of the last several years, which recognizes the many pro-competitive justifications for intellectual property licensing and is careful to avoid any interference with such pro-competitive activities.
2017 Update Edit
The revised Guidelines are an attempt to modernize the 1995 Guidelines. The agencies updated the guidelines to address changes in statutory and case law, as well as relevant enforcement and policy work, including the 2010 Horizontal Merger Guidelines.
- ↑ These Guidelines do not cover the antitrust treatment of trademarks. Although the same general antitrust principles that apply to other forms of intellectual property apply to trademarks as well, these Guidelines 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.
- ↑ Guidelines §1.0.
- ↑ See 35 U.S.C. §261, which states that under U.S. patent law, "patents shall have the attributes of personal property."
- ↑ Guidelines §2.0. Similarly, lower court cases generally have stated that whether a patent confers market power in the antitrust sense depends on an assessment of the patent's exclusionary power in the relevant market. E.g., Loctite Corp. v. Ultraseal, Ltd., 781 F.2d 861, 877 (Fed. Cir. 1985) (full-text).
- ↑ Guidelines § 2.0.
- ↑ Id.