The US Federal Trade Commission (FTC) and the Department of Justice (DOJ) issued on 13 January 2017 new, updated, antitrust guidelines for the licensing of IP. The Guidelines represent the antitrust enforcement policy of the U.S. Department of Justice and the Federal Trade with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law, and of know-how. However, they do not cover trademarks licensing. The Guidelines, which replace the previous, April 1995 version, are aimed at assisting businesses in foreseeing whether a particular practice may be challenged as anticompetitive. However, the FTC and DOJ will evaluate each case in light of its own facts.
The basic – unchanged – principles of antitrust assessment of IP licensing are the following:
(1) the competent agencies apply the same 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;
(2) they do not presume that IP creates market power in the antitrust context, as there will often be sufficient actual or potential close substitutes for the relevant product, process, or work to prevent the exercise of market power; and
(3) the FTC and DOJ recognize that IP licensing is generally procompetitive.
The full text, a very interesting read, can be found here.