The Federal Trade Commission and Department of Justice proposed on August 12, 2016 to revise the Antitrust Guidelines for the Licensing of Intellectual Property (the "IP Licensing Guidelines") for the first time in over two decades. Since 1995, the IP Licensing Guidelines have provided guidance to businesses and the public regarding potential antitrust issues that may arise in the context of IP licenses. The proposed update allegedly reflects the experience and policy expertise that the agencies have accumulated over the past 20-plus years. "Licensing is a cornerstone of a strong system of IP rights because it offers one way that firms can maximize the value of their IP and realize an appropriate return on their investment," said FTC Chairwoman Edith Ramirez. "These updated Guidelines reaffirm our view that U.S. antitrust law leaves licensing decisions to IP owners, licensees, private negotiations, and market forces unless there is evidence that the arrangement likely harms competition." And according to acting Assistant Attorney General Renata Hesse, in charge of the Department of Justice's Antitrust Division, "[the IP Licensing Guidelines] have also guided business planning, and they have been cited by courts, in numerous government briefs, business review letters, and policy documents. Although the Guidelines are sound, it is time to modernize them to reflect changes in the law since they were issued."
This update would affect the licensing of patents, copyrights, and trade secrets.
Interested parties may submit public comments until September 26, 2016.
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