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

Related Documents:

• Antitrust Guidelines for the Licensing of Intellectual Property (January 12, 2017)

• Press Release: DOJ and FTC Issue Updated Antitrust Guidelines for the Licensing of Intellectual Property (January 13, 2017)

• Blog Post: Ring in the New Year with Modernized DOJ/FTC IP Licensing Guidelines (January 13, 2017)

• Proposed Update of Antitrust Guidelines for the Licensing of Intellectual Property (August 12, 2016)

• Proposed Update of Antitrust Guidelines for the Licensing of Intellectual Property (Redline, August 12, 2016) (inline citations moved to footnotes are not shown in redline)

• Antitrust Guidelines for the Licensing of Intellectual Property (April 6, 1995)

• Press Release: DOJ and FTC Seek Views on Proposed Update of the Antitrust Guidelines for Licensing of Intellectual Property (August 12, 2016)

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.

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