IP Europe Comments on Proposed Update to the U.S. Federal Trade Commission and Department of Justice 1995 Antitrust Guidelines for the Licensing of Intellectual Property 

IP Europe is pleased to submit the following general comment on the recently proposed update to the U.S. Federal Trade Commission and Department of Justice (“Agencies”) 1995 Antitrust Guidelines for the Licensing of Intellectual Property (“proposed Guidelines”). 

Who We Are

IP Europe brings together R&D intensive European companies and research institutes committed to innovation, from SMEs to global enterprises and non-profit research entities operating in a variety of industrial sectors. They all share a common goal: to maintain, at all policy levels, strong patent protection for innovators and support recognized fair, reasonable and non-discriminatory standardisation policies adopted by consensus that preserve fair compensation for innovators.

The Proposed Update

IP Europe was pleased to see that both the original guidelines and proposed Guidelines’ texts recognize the vast procompetitive benefits of intellectual property licensing and the ways in which it provides an incentive to invest in innovative efforts.[1] We were also pleased to see that the Proposed Guidelines continue to deal with technology transfer and innovation-related issues that arise with respect to all intellectual property rights except for trademarks in the same manner.

Without going in depth into the whole text of the Proposed Guidelines, we would like to offer two comments, a high level overarching comment and a specific textual comment, as follows:

  1. Cognizant that the public comments submitted may suggest additional revisions to the Guidelines’ text, we hope that the final Guidelines text continues to be balanced and in line with the U.S. obligations under the WTO TRIPs agreement and other pertinent multilateral treaty obligations.
  1. The proposed Guidelines’ reformulated text[2] reads: “even if it lawfully acquired or maintained that [market] power, the owner could still harm competition through unreasonable conduct in connection with such property.” Such broadly phrased text can be read to suggest that any conduct deemed “unreasonable” by the Agencies can be a violation of antitrust law.  We assume such reading, that may go beyond U.S. antitrust law as well as the narrow competition exceptions of the WTO TRIPs agreement, was unintended, and therefore suggest that that language be tightened.

Thank you for your kind consideration

[1] §2.3 of both current and proposed Guidelines.

[2] §2.2 of the proposed Guidelines


IP Europe comments (PDF)

DOJ source: https://www.justice.gov/atr/guidelines-and-policy-statements-0/antitrust-guidelines-licensing-intellectual-property-proposed-update-2016