Preface

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PREFACE

When the Antitrust Division of the U.S. Department of Justice (DOJ

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

Commission) issued Antitrust Guidelines for the Licensing of Intellectual

Property (Intellectual Property Guidelines or Guidelines) in 1995, there

was an active, and often-times spirited, debate within the antitrust

community about the proper role of antitrust law in matters involving

patents, copyrights, and other forms of intellectual property. The

Intellectual Property Guidelines provided a statement of the enforcement

agencies’ antitrust policy with respect to the licensing of intellectual

property rights. But the issuance of the Guidelines by no means short-

circuited the discussion on this topic. Even within the enforcement

agencies, the formulation of antitrust policy in this area remains an on-

going process, as reflected by the report issued by the agencies in 2007

entitled Antitrust Enforcement and Intellectual Property Rights:

Promoting Innovation and Competition (2007 IP Report).

Shortly after the Intellectual Property Guidelines were issued, a task

force within the Section of Antitrust Law authored the first edition of this

handbook (Handbook) on the Guidelines. The Handbook provided a

practical guide for lawyers and their clients involved in intellectual

property licensing transactions or engaged in antitrust litigation involving

intellectual property. It also pr ovided a useful perspective on how t he

Intellectual Property Guidelines fit within the historical evolution of

antitrust policy with respect to intellectual property and how the

Guidelines compared and c ontrasted with existing case law on the

subject. In 2002, the Section issued a second edition to reflect the many

enforcement proceedings and judicial decisions since 1995 addressing

intellectual property licensing issues.

Several significant legal developments in the years since the second

edition was published prompted the Intellectual Property Committee to

sponsor a third edition of this book. Building on the earlier work of the

prior editions, the third edition reflects enforcement proceedings and

judicial decisions since 2002 addressing intellectual property licensing

issues. Moreover, this editi on includes materials comparing U.S.

antitrust law regarding intellectual property licensing to European

Competition policy, an important addition given the increasingly multi-

jurisdictional nature of intellectual property licensing.