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2017 Update of the Antitrust Guidelines for the Licensing of Intellectual Property

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Department of Justice and Federal Trade Commission’s Update to the Antitrust Guidelines for the Licensing of Intellectual Property

The Department of Justice and the Federal Trade Commission issued updated Antitrust Guidelines for the Licensing of Intellectual Property (“IP Licensing Guidelines”) in January 2017. The IP Licensing Guidelines describe how the agencies evaluate the potential competitive effects of licensing agreements that involve patents, copyrights, trade secrets, and know-how.

In the past twenty-plus years, the IP Licensing Guidelines have served their intended purpose of providing guidance to businesses and the public regarding potential antitrust issues that may arise in the context of intellectual property licenses. This update modernizes the IP Licensing Guidelines to account for legal developments in U.S. intellectual property and antitrust laws since 1995. The update continues to rely on the sound principles and analyses of the 1995 IP Licensing Guidelines, including that “the Agencies apply the same antitrust 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”; “the Agencies do not presume that intellectual property creates market power”; and “the Agencies recognize that intellectual property licensing allows firms to combine complementary factors of production and is generally procompetitive.” The update is not intended to change the Agencies’ enforcement approach with respect to intellectual property licensing nor expand the IP Licensing Guidelines into other topics and areas.

Public Comments

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Number Name
AGL-00001 Carrier, Michael (Rutgers Law School)
AGL-00002 Farrell, Joseph; Gilbert, Richard; Shapiro, Carl (University of California, Berkeley)
AGL-00003 Global Antitrust Institute at George Mason Law School
Antitrust Committee of the International Bar Association
Troncoso, Christian (BSA | The Software Alliance)
Kieff, F. Scott (United States International Trade Commission)
Toyoda, Hideo (Panasonic Corporation)
Feder, Dr. Theodore (Artists Rights Society)
Lau, Jannie K. (InterDigital)
Law and Business Scholars
Mielert, Stephanie (Fraunhofer)
Innovation Alliance
Lim, Daryl (The John Marshall Law School)
Duan, Charles (Public Knowledge)
ABA Sections of Antitrust Law and Intellectual Property Law
Reed, Morgan (ACT | The App Association)
Mitchell, John T. (Interaction Law)
Kallay, Dina (Ericsson)
The International Center for Law & Economics
Combined Comments from 12 Companies
Slater, Greg S. (Intel Corp.)
Brunell, Richard M.
Association of Medical Illustrators
Updated January 24, 2017