Foreword

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FOREWORD

The Section of Antitrust Law is pleased to publish this third edition

of its handbook (Handbook) on the Antitrust Guidelines for the Licensing

of Intellectual Property (Intellectual Property Guidelines or Guidelines)

issued by the Antitrust Division of the U.S. Department of J ustice (DOJ

or the Division) and the Feder al Trade Commission (FTC or the

Commission). T he continuing popularity of the Handbook and the

number of important antitrust developments since the Intellectual

Property Guidelines were issued in 1995 convinced the Section that it

was time for a new edition.

Like its predecessors, this third edition provides a description of the

enforcement agencies’ antitrust policy with r espect to the licensing of

patents, copyrights, trade secrets, and know-how. The third edition has

also been updated to reflect the pertinent developments since the

agencies issued their Guidelines 15 years ago and since the issuance of

the second edition in 2002. Since 1995, the agencies have initiated a

wide variety of enforcement actions involving intellectual property and

have pursued claims ranging from alleged price fixing among patent

holders to allegedly anticompetitive settlements of infringement

litigation. In addition to discussing these enforcement actions and the

recent judicial decisions in this area, this book provides some historical

perspective on the agencies’ policies with respect to the licensing of

intellectual pr operty. Finally, the book discusses the April 2007 report

issued by the DOJ and the FTC entitled Antitrust Enforcement and

Intellectual Property Rights: Promoting Innovation and Competition, as

well as other reports or statements of policy by the agencies.

This edition of the commentary on the Intellectual Property

Guidelines is the work of several members of the Section’s Intellectual

Property Committee working under the leadership of David S. Copeland

and Frank Fine, with input from a number of other Section members.

The Section’s goal is that, like the first and second editions, the revised

Handbook will provide a practical guide on intellectual property

licensing issues to antitrust practitioners and their clients.

April 2010 Ilene Knable Gotts

Chair, Section of Antitrust Law

American Bar Association

2009-2010