The FTC and DOJ have jointly issued a monumental report on the relationship between patent rights and antitrust policy. Gems from the report:
- Refusal to license patents to competitors - without more - will not raise antitrust concerns.
- Conditional refusals, on the other hand, are subject to antitrust scrutiny.
- Standard setting negotiations, cross-licensing, & patent pools are not per se violations, but are reviewed under the rule of reason framework.
- The starting point for evaluating practices that extend beyond a patent’s expiration is an analysis of whether the patent in question confers market power. If so, these practices will be evaluated under the agencies’ traditional rule of reason framework, unless the agencies find a particular practice to be a sham cover for naked price fixing or market allocation.
- Collecting royalties beyond a patent’s statutory term can be efficient.
Notably absent from the report are issues involving pharmaceutical reverse-payments where the two departments have recently knocked-heads.
Read the report here.
[Via Professor Sokol at the Antitrust Blog]