DOJ, FTC Propose Update to IP Antitrust Enforcement Guidelines

The DOJ and FTC jointly sought comment Friday on a proposed update of their 1995 guidelines for enforcing antitrust policy on IP licensing matters protected by relevant copyright, patent and trade secret laws. The revisions are intended to “modernize” the existing IP guidelines to reflect recent IP-related court cases, the 2016 Defend Trade Secrets Act and changes in the lengths of copyright and patent terms, the agencies said. The update also addresses issues that the government raised in the pair's 2007 report on antitrust IP issues and in the FTC's 2011 IP marketplace report, including language that reflects the agencies' view that “the antitrust laws generally do not impose liability upon a firm for a unilateral refusal to assist its competitors, in part because doing so may undermine incentives for investment and innovation.” The agencies also are updating the guidelines to reflect an analysis of markets affected by licensing arrangements that mirrors their approach for horizontal mergers. The new language retains the idea of “innovation markets” but refers to them as “research and development markets” to better reflect how the DOJ and FTC defined them in enforcement actions, the agencies said. The IP licensing guidelines “have been invaluable to the department’s investigative and enforcement efforts since they were issued in 1995,” said Antitrust Division head Renata Hesse in a news release. “They 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.” Comments on the guidelines revamp are due Sept. 26. FTC members voted 3-0 to issue the request for modernization.