Antitrust and Consumer Protection
Competition: 2016, Vol 25, No. 2
Content
- Biometric Privacy Litigation: Is Unique Personally Identifying Information Obtained From a Photograph Biometric Information?
- California Online Privacy Laws: the Battle For Personal Data
- Chair's Column
- "Clear and Conspicuous" Disclosures Between Celebrity Endorsers and Advertisers On Social Media Websites
- Comments On Proposed Update On Intellectual Property Licensing Guidelines
- Editor's Column
- Exceptions To the Rule: Considering the Impact of Non-practicing Entities and Cooperative Regulatory Processes In the Update To the Antitrust Guidelines For the Licensing of Intellectual Property
- Ftc Privacy and Data Security Enforcement and Guidance Under Section 5
- Home Run or Strikeout? the Unsettled Relationship Between the Sports Broadcasting Act and Cable Programming
- Masthead
- Never Say Never: the Ninth Circuit's Misguided Categorical Approach To Individual Damages Questions When Assessing Rule 23(B)(3) Predominance
- The Rapidly Changing Landscape of Private Global Antitrust Litigation: Increasingly Serious Implications For U.S. Practitioners
- Dispatches From the West Coast: Federalism, Competition, and Comments On the United States' Proposed Update To the Antitrust Guidelines For Licensing Intellectual Property
DISPATCHES FROM THE WEST COAST: FEDERALISM, COMPETITION, AND COMMENTS ON THE UNITED STATES’ PROPOSED UPDATE TO THE ANTITRUST GUIDELINES FOR LICENSING INTELLECTUAL PROPERTY1
By Emilio Varanini2 and Cheryl Johnson3
I. INTRODUCTION
The United States Department of Justice and the Federal Trade Commission (the "Agencies") issued in August of this year the Proposed Update to the Antitrust Guidelines for Licensing Intellectual Property (the "Proposed Update") and sought comments from the public.4 Though the official comment period closed on September 26, 2016, it is anticipated that the finalization of the Proposed Update will take some time.
States like California are on the front lines in finding the appropriate mix between intellectual property ("IP") and antitrust so as to continue the unprecedented growth of industries in their states, such as the high-technology industry, the biotech industry, and the creation of new content and services.5 It is therefore important for states that the balance be struck true in rewarding innovation through the grant of IP rights without allowing the anticompetitive leveraging of those rights to create entrenched monopolies and cartels that hinder competition.6 States like California have brought important cases in the areas of pharmaceuticals and high-technology involving the intersection of IP and antitrust.7 And as guardians of federalism and the resulting split of sovereignty in the U.S. Constitution,8 states like California have a strong interest in reconciling and harmonizing the workings of IP laws with other laws and doctrines, including state and federal antitrust law.9 As antitrust enforcers for the State of California with a substantial background in IP, we set out our own personal views on this Proposed Update against this backdrop.