DOJ, FTC Finalize Update to IP Antitrust Enforcement Guidelines

The DOJ and FTC issued a final version of their update of joint guidelines for enforcing antitrust policy on IP licensing Friday. The agencies’ original proposal got a mixed reaction in September, with several tech sector groups criticizing them for not addressing controversial IP issues like patent assertion entities and standard-essential patents (see 1609280063). The update's final version retains much of the original proposal, including the agencies’ high-level approach to enforcing antitrust policy on IP licensing matters and avoidance of the controversial IP issues. The updated guidelines reflect “intervening changes in statutory and case law, as well as relevant enforcement and policy work, including the agencies’ 2010 Horizontal Merger Guidelines,” said DOJ Antitrust Division head Renata Hesse in a blog post. The update was aimed at reflecting recent IP-related court cases, the 2016 Defend Trade Secrets Act and changes in the lengths of copyright and patent terms (see 1608120045 and 1608180056). The revised guidelines reaffirm the FTC’s “commitment to an economically grounded approach to antitrust analysis of IP licensing,” said outgoing Chairwoman Edith Ramirez in a news release. Commissioners voted 3-0 in favor of the final guidelines. The revised guidelines “are a welcome guidepost,” said Commissioner Maureen Ohlhausen in a statement. The update embraces “principles of commendable flexibility,” including that IP licensing is generally pro-competitive, she said. Ramirez is leaving the FTC next month, she announced separately Friday (see 1701130030).