General Principles of the Guidelines

• Pages: 19-30

19

CHAPTER III

GENERAL PRINCIPLES OF THE GUIDELINES

The enforcement agencies set forth in the Guidelines three general

principles: (1) for the purpose of antitrust analysis, intellectual property

is essentially comparable to any other form of property; (2) intellectual

property rights are not presumed to create market power for purposes of

antitrust analysis; and (3) intellectual property licensing is generally

procompetitive, as it allows firms to combine complementary factors of

production.

1

Each of these three general principles was expressed in some form in

the 1988 International Guidelines. For example, the 1988 International

Guidelines recognized “that intellectual property . . . does not necessarily

confer a monopoly or market power in any relevant market.”

2

The 1988

International Guidelines also expressed the view that restraints in

licensing arrangements involving intellectual property often serve a

procompetitive purpose.

3

Even the principle that intellectual property

should be treated for antitrust purposes like any other form of property

has precedent in the 1988 International Gui delines, which viewed

intellectual property as comparable to other property that is “created,

transferred, or used in the production of goods or services.”

4

1. U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrus t Guidelines for the

Licensing of Intellectual Property § 2.0 (1995) [hereinafter

INTELLECTUAL PROPERTY GUIDELINES or GUIDELINES], reprinted in 4

Trade Reg. Rep. (CCH) ¶ 13,132 and Appendix A to thi s book; see also

Antitrust Enforcement and Intellectual Property Rights: P romoting

Innovation and Competition at 3-4 [hereinafter 20 07 IP REPORT] (citing

these principles from the Guidelines).

2. U.S. Dep’t of Justice, Antitrust Enforcement Guideli nes for International

Operations § 3.6 (1988), Part II, Case 12 [hereinafter 1 988

INTERNATIONAL GUIDELINES], reprinted in 4 Trade Reg. Rep. (CCH)

¶ 13,109, at 20,636.

3. Id. § 3.61.

4. Id. § 3.6.