FTC and DOJ Seek Public Comment on Proposed Updates to Antitrust Guidelines for IP Licensing | Practical Law

FTC and DOJ Seek Public Comment on Proposed Updates to Antitrust Guidelines for IP Licensing | Practical Law

The Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) are soliciting public comments on proposed updates to the 1995 Antitrust Guidelines for the Licensing of Intellectual Property.

FTC and DOJ Seek Public Comment on Proposed Updates to Antitrust Guidelines for IP Licensing

by Practical Law Intellectual Property & Technology
Published on 15 Aug 2016 • USA (National/Federal)
The Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) are soliciting public comments on proposed updates to the 1995 Antitrust Guidelines for the Licensing of Intellectual Property.
On August 12, 2016, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) issued a press release announcing a proposed update to the Antitrust Guidelines for the Licensing of Intellectual Property (IP Licensing Guidelines), originally issued in 1995. The IP Licensing Guidelines set out the agencies’ enforcement policy and provide guidance concerning potential antitrust issues arising in patent, copyright, and trade secret licensing.
The FTC's and DOJ's joint press release states that the proposed updates to the IP Licensing Guidelines are intended to reflect changes in statutory and case law and administrative agency guidance since 1995, including:
  • The enactment of the Defend Trade Secrets Act of 2016, which creates a private federal cause of action for trade secret misappropriation.
  • Changes in the statutory terms of protection for patents and copyrights.
  • Supreme Court decisions concerning:
    • market power, specifically that ownership of a patent does not necessarily confer market power on the IP owner; and
    • resale price maintenance provisions in IP licensing agreements, which are now evaluated under the rule of reason.
Comments can be submitted by email to [email protected] and will be accepted until September 26, 2016.