U.S. Agencies Propose New Antitrust Guidelines For Intellectual Property Licensing

With relatively little fanfare, the U.S. Department of Justice's Antitrust Division and the Federal Trade Commission released a proposed update of their 21-year-old Antitrust Guidelines for the Licensing of Intellectual Property, along with an invitation for interested parties to comment by September 26, 2016.

The antitrust agencies do not propose significant changes to their enforcement approach with respect to IP licensing. Rather, the Proposed IP Guidelines modernize their 1995 IP Guidelines to account for enforcement experience and policy expertise acquired during the past two decades, as well as changes in statutory and case law. Overall the changes are modest. As with developments in antitrust law more generally, most of the relatively few substantive changes permit greater flexibility in IP licensing.