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
- Dispatches From the West Coast: Federalism, Competition, and Comments On the United States' Proposed Update To the Antitrust Guidelines For Licensing Intellectual Property
- Editor's Column
- 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
- 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
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
By Robin Feldman1
The Department of Justice (DOJ) and Federal Trade Commission (FTC) released a proposed update to the 1995 Antitrust Guidelines for the Licensing of Intellectual Property on August 12, 2016.2 The following comments were submitted to the DOJ and FTC in response to the proposed update.
My primary comments pertain to the basic principle underlying the Guidelines and Update, that intellectual property licensing "is generally procompetitive.”3 While this premise is sound when analyzing traditional intellectual property markets, there is now a large secondary market for patents, populated by non-practicing entities (NPEs), for which the intensity of that statement no longer holds true and which requires a more nuanced approach. In that context, a stark statement of general procompetitiveness, without qualification, can hamper efforts by states and market actors to grapple with modern manifestations of anticompetitive behavior.
As explained in greater depth below, I recommend the following amplifications to the language in Sections 2.0 and 3.2 of the Update to take into account a secondary market in which intellectual property licenses may not serve procompetitive ends. The suggested language is italicized below: