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Antitrust Guidelines for the Licensing of Intellectual Property

US Department of Justice & US Federal Trade Commission, Guidelines, January 2017

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The Federal Trade Commission and the Department of Justice issued updated Antitrust Guidelines for the Licensing of Intellectual Property that explain how the federal antitrust agencies evaluate licensing and related activities involving patents, copyrights, trade secrets, and know-how. This update modernizes the agencies’ 1995 IP Licensing Guidelines, ensuring that they continue to play a fundamental role in the agencies’ analysis of the licensing of intellectual property rights and provide guidance to the public and the business community about the agencies’ enforcement approach to intellectual property licensing.

The agencies announced the proposed update of the IP Licensing Guidelines and made it available for public comment in August 2016. As described in that announcement, the proposed update reflected intervening changes in statutory and case law, as well as relevant enforcement and policy work, including the agencies’ 2010 Horizontal Merger Guidelines. During a 45-day comment period, the agencies received public comments from academics, private industries, law associations, and non-profit organizations.