Adequacy of the 1995 Antitrust Guidelines for IP Licensing: Commentaries from the 2002 FTC and DOJ Hearings

In 1995, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) adopted new guidelines for the licensing of intellectual property rights without violating antitrust laws. The 1995 Antitrust Guidelines for the Licensing of Intellectual Property (IP Guidelines) state the antitrust enforcement policy of the DOJ and the FTC.1 The IP Guidelines drafted by the DOJ and FTC (the agencies) does not provide practitioners with a sufficient level of comfort as they attempt to predict the enforcement initiatives relative to intellectual property licensing.2 The IP Guidelines are inadequate because they misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. The IP Guidelines include a special treatment of a newly defined “innovation market” that is flawed and lack a focus on license-misuse activity that creates entry barriers

Adequacy of the 1995 Antitrust Guidelines for the Licensing of Intellectual Property in Complex High Tech Markets

In 1995, the Department of Justice and the Federal Trade Commission adopted new guidelines for those wishing to license intellectual property rights without violating antitrust laws. Designed to provide clarity, these guidelines instead breed confusion because they misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. Section I of this article will discuss the basic provisions of the guidelines, especially their treatment of innovation markets. It argues that government enforcers should focus primarily on activity that creates entry barriers. Understanding the use and misuse of licensing is the key to analyzing barriers in the IP field. The remainder of the article therefore examines three common types of license misuse. Section II considers patent holders\u27 potential liability for refusing to grant licenses to competitors. Section III looks at the effect of setting industry standards and at patent holders\u27 misconduct during industry standard setting. Section N analyzes patent accumulation through devices such as pooling and cross-licensing. The article concludes that the government should further amend the Guidelines to provide clearer rules for use of IP licenses

Misuse

The misuse defense in copyright and patent law is something of an anomaly. Under the approach favored by many courts that have considered the defense, misuse is defined as the broadening of one\u27s copyright or patent with anticompetitive effect. When a defendant in a copyright or patent infringement suit succeeds in proving that the plaintiff has misused its copyright or patent, the court typically enters judgment that the copyright or patent is unenforceable until the misuse is purged. There is no necessary requirement that the copyright or patent defendant itself has been a victim of the misuse (the standing anomaly); and despite the posited relationship of misuse to competition policy, courts continue to affirm that misuse may exist even when the challenged practice does not amount to a violation of the antitrust laws. As such, misuse can become something of a wild card in copyright and patent litigation. Articulating a distinct role for the doctrine, in relation to both antitrust law and to such copyright doctrines as fair use and merger, has not proven easy. In this essay, I argue for a reformed and narrowed version of the misuse defense in both copyright and patent law. Specifically, I argue that licensing provisions that enable copyright or patent owners to extract concessions from licensees that are likely to cause net social harm to interests such as dynamic efficiency and freedom of speech should be deemed unenforceable under a doctrine of transactional misuse. Courts should be reluctant to find such misuse absent clear evidence of such net harm; at the same time, however, there may be rare cases in which such harm is present despite the fact that antitrust law would probably not intervene under similar circumstances. Finally, the standard remedy for transactional misuse should be limited to the unenforceability of the offending license provision, a reform that would tend to eliminate the standing anomaly. For litigation misuse, on the other hand, tentatively defined as the spurious assertion of copyright or patent rights in litigation for the purpose of inducing defendants to avoid accessing public-domain materials not within the scope of the grant, unenforceability of the intellectual property in its entirety may in some instances be an appropriate remedy

Technical Standards, Intellectual Property, and Competition—A Holistic View

Until now, most of the literature that regards the interaction between intellectual property and both mandatory and voluntary technical standards has been limited to a particular area of intellectual property. This Article examines the interaction from a holistic perspective, involving the main intellectual property disciplines: patents, trademarks, and copyrights. Most generally, a tension exists between intellectual property and technical standards due to their differing—and somewhat opposing—objectives and public policies. Further, the interaction between technical standards and intellectual property typically depends on the categorization of the technical standard as mandatory or voluntary. Because the public policies that inform technical standards are oriented towards reducing product and service differentiation, they reduce market freedom. The reduction in market freedom is limited, however, because technical standards are frequently adopted for technical and economic efficiency, which may have a downstream, positive effect on competition

Innovation and Competition Policy, Chapter 8 (2d ed): Innovation, IP Rights, and Anticompetitive Exclusion

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective. This document is Chapter 8, revised second edition on exclusionary practices, including refusal to license, exclusionary pricing, anticompetitive design, and technological tying. It also includes coverage of expanded sharing duties under the 1996 Telecommunications Act, as well as net neutrality and related regulations promulgated by the Federal Communications Commissio

Binding prometheus: Regulating refusals to license digital copyright content under the Singapore competition act 2004

Master'sMASTER OF LAW

Retooling the Intellectual Property-Antitrust Intersection: Insights from Behavioral Economics, 69 Baylor L. Rev. 124 (2017)

This Article argues that courts should operationalize insights offered by behavioral economics in developing jurisprudence at the patent-antitrust interface

Hammer v. City of Sun Valley Clerk\u27s Record v. 4 Dckt. 43079

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/7591/thumbnail.jp