Updated Antitrust Guidelines for the Licensing of Intellectual Property Reaffirm Core Principles
On January 13, 2017, the Federal Trade Commission and the Antitrust Division of the Department of Justice (collectively, the “Agencies”) released the first-ever update to the Antitrust Guidelines for the Licensing of Intellectual Property (the “Guidelines”). Originally issued in 1995, the Guidelines had been in place for over two decades without alteration, and were silent on many of today’s hot-button issues. The Agencies received over twenty public comments urging a wide range of revisions, but ultimately remained true to their stated goal of “moderniz[ing]” the Guidelines “without changing the agencies’ enforcement approach” and without “expanding the IP Licensing Guidelines to address other topics.” The changes include several important substantive updates, but consist largely of a refresh of the initial version, and come with a clear message that the Agencies will continue to rely on previous policy statements and guidance documents to cover issues not addressed in the revised Guidelines.