High tech firms and their customers who rely on intellectual property laws for defining the scope of protection of vital intellectual property rights also need to be cognizant of the limitations that antitrust law imposes on the exercise of those rights. The Department of Justice and the Federal Trade Commission have considered the intersection of antitrust and intellectual property laws to be of sufficient importance that they jointly issued updated Antitrust Guidelines for the Licensing of Intellectual Property (“IP Licensing Guidelines”) in January 2017. The IP Licensing Guidelines describe how the agencies evaluate the potential competitive effects of licensing agreements that involve patents, copyrights, trade secrets, and know-how.
FisherBroyles is uniquely equipped to provide integrated, practical solutions relating to such issues as intellectual property licensing, pricing, standard-setting, joint ventures, and product bundling. In addition to day-to-day counseling on transactions and prospective business arrangements, FisherBroyles can assist clients in developing or updating their antitrust compliance and training programs, as well as strategies for maximizing intellectual property assets within the constraints of antitrust law.
FisherBroyles’ expertise includes the following areas, among others:
- Relationships among competitors – Prohibited cartels/joint refusals to deal versus permitted cooperative activities. Joint ventures/consortiums, standards bodies, trade associations, and information exchanges such as benchmarking.
- Relationships with customers and suppliers – tying/bundling arrangements, reciprocity, IP license terms, most-favored nation contract clauses, and exclusive dealing.
- Monopolization – market power issues and anti-competitive conduct by a dominant firm such as exclusive arrangements, refusing to deal with customers who purchase or license from competitors, tying/bundling arrangements, and below-cost pricing.
ANTITRUST STATUTORY FRAMEWORK:
- Sherman Act
- Clayton Act
- Federal Trade Commission Act
- Robinson-Patman Act
- Bank Holding Company
- State laws
- International (e.g., European Union competition law)
- Software and Other Technology Product & Service Vendors
- Banking & Financial Services