Antitrust Guidelines for the Licensing of Intellectual Property

Citation
U.S. Department of Justice & Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property (Apr. 6, 1995) (full-text).

Overview
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 anti-competitive. 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.