On Friday, August 12, 2016, the Antitrust Division of the US Department of Justice and the Federal Trade Commission announced a proposed “update” to their 1995 Antitrust Guidelines for the Licensing of Intellectual Property (“IP Guidelines”). Unlike with their 2010 “revision” of their Horizontal Merger Guidelines, the agencies are not proposing any significant changes to the IP Guidelines’ analytical approach, which has guided contemporary antitrust analysis of not just IP licensing but a wide range of business conduct. This means that the update remains silent on at least two important areas of agency IP activity. For example, the update contains no guidance on antitrust issues presented by settlements of IP infringement litigation, a key focus of the FTC in the pharmaceutical industry. And although both agencies have examined antitrust issues presented by alleged violations of commitments to license standard-essential patents on fair, reasonable and non-discriminatory (“FRAND”) terms, the proposed update does not even mention the subject. Instead, the update consolidates developments from the last two decades of US case law, adding a handful of uncontroversial tweaks to the agencies’ approach to IP licensing. The IP Guidelines’ focus remains on encouraging the combination of complementary resources through licensing while limiting a license’s potential for harming competition that was likely to have existed in its absence.
The agencies have invited public comments on their proposed update between now and Monday, September 26, 2016.
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