The American Antitrust Institute (AAI) filed comments today in response to a request by the Antitrust Division (DOJ) and the Federal Trade Commission (FTC) for public comment on the agencies’ proposed update of the DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property.
AAI’s comments are broadly supportive of the agencies’ proposed modest update, but urge the agencies to undertake a more fulsome revision that addresses, in particular: (1) issues involving the licensing, enforcement, and acquisition and sale of standard essential patents (SEPs); (2) special problems posed by patent assertion entities (PAEs); and (3) patent settlements.
The AAI recommends that the agencies add a stronger statement of the role of competition and antitrust in promoting innovation. As the FTC’s 2011 IP Report explains, “The patent system’s exclusive right promotes innovation, but so too does competition, which drives firms to produce new products and services in the hope of obtaining an advantage in the market. The patent system and the antitrust laws share the fundamental goals of enhancing consumer welfare and promoting innovation.”
The AAI also recommends that the agencies include: a more balanced statement on the legal treatment of refusals to deal; further elaboration of the legal standard for tying, exclusive dealing by monopolists, and abusive enforcement of patents; and additional references to FTC v. Actavis, 133 S. Ct. 2223 (2013).
These comments are part of the AAI’s continuing IP Competition Project, which seeks to ensure an appropriate balance between IP protection and competition to enhance consumer welfare and promote innovation.