The Wait Is Over: FTC and DOJ Issue Their Long-Anticipated Report on Antitrust Enforcement and Intellectual Property Rights

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Today, the U.S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) issued their long-awaited report on Antitrust Enforcement and Intellectual Property Rights (“Antitrust-IP Report”), available at http://www.usdoj.gov/atr/public/hearings/ip/222655.pdf. This report summarizes and synthesizes a series of hearings in 2002 conducted jointly by the FTC and DOJ (collectively, the “Agencies”), entitled “Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy.” The hearings spanned 24 days over a 10 month period, incorporating submissions and testimony from more than 300 commentators, representing a wide range of interests and industries.

The Antitrust-IP Report is, in many ways, a reaffirmation of the Agencies’ existing practices and enforcement policies over the last several years, policies that are embodied in the 1995 DOJ-FTC Antitrust Guidelines for the Licensing of Intellectual Property (the “1995 Guidelines”). The fundamental theme of the report is that most uses of intellectual property — including tying, exclusive dealing, licensing terms (such as grantbacks and non-assertion clauses), and patent pools and cross-licenses — can enhance competition and benefit consumers. The Agencies will therefore evaluate the lawfulness of these kinds of agreements under the antitrust rule of reason, which

requires courts and the Agencies to balance the procompetitive effects of specific agreements

against their anticompetitive effects.

The Agencies announced a number of general policy views in today’s Antitrust-IP Report:

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