In July, we reported that the Australian Competition and
Consumer Commission (ACCC) had released draft
guidelines in relation to the application of competition law to IP
licensing, following the repeal of section 51(3) of the
Competition and Consumer Act (CCA).
The ACCC has now published its guidelines in final form.
Although broadly similar to the previous draft, there are some
notable changes in the final version:
- The ACCC now explains its approach to assessing the effect or
likely effect of particular conduct on competition as involving a
"with or without test", which compares the likely state
of competition "with" the relevant conduct to the likely
state of competition "without" the relevant conduct.
Significantly, the test involves assessing the "without"
scenario as there being no IP licence at all (not a licence without
the possibly anti-competitive condition). Applying this test, IP
licences will rarely involve a "substantial lessening of
competition",
