The Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) have published a joint report about the interface between intellectual property and competition, entitled “Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition.” The report is addressed to consumers, businesses and intellectual property rights holders, and describes both agencies’ views on competition policy in areas where intellectual property rights are concerned. Among the issues the report addresses are (i) refusals to license; (ii) incorporation of patented technologies in industry standards; (iii) cross-licensing and patent pooling; (iv) intellectual property licensing practices; (v) tying and bundling of intellectual property rights; and (vi) strategies used to extend the market power conferred by patents beyond their legal duration.
The report is based on information gathered during a series of hearings hosted by the agencies, beginning in February 2002. Such hearings, according to the report, confirmed the agencies’ current approach to intellectual property issues. In most cases, the agencies analyze business practices that involve intellectual property rights under the rule of reason, accounting for both the efficiencies and anticompetitive effects of the particular practice. “This analysis,” according to the report, “focuses on preserving incentives for creativity and innovation, and avoids applying intellectual property-specific rules that may undermine creativity and innovation.”
The report is available on the FTC’s website, at the following Internet address: http://www.ftc.gov/opa/ 2007/04/ipreport.shtm.