COMPETITION AND INTELLECTUAL PROPERTY IN THE U.S.: LICENSING FREEDOM AND THE LIMITS OF ANTITRUST

R. Hewitt Pate, Assistant Attorney General Antitrust Division U.S. Department of Justice

3/18/2015
(Original Publish Date: 6/3/2005)

Defining the relationship of intellectual property rights and competition law is an important economic issue in Europe and the United States. This paper attempts to outline some bedrock principles of intellectual property and antitrust policy in the United States, then discuss how they explain, and in some cases require, the current U.S. approach to a series of specific licensing practices. The basic U.S. approach, reflected in the 1995 DOJ/FTC Guidelines for the Licensing of Intellectual Property, calls for flexible application of economic analysis to licensing practices. And the recent trend has been one of increasing convergence in U.S. and European approaches to IP licensing questions, as seen in the new revisions to the Technology Transfer Block Exemption and accompanying guidelines.