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I. Antitrust Guidelines for the Licensing of Intellectual Property,Issued by the U.S. DoJ and the FTC

II. Antitrust Guidelines for Collaborations Among Competitors, Issued by the FTC and the U.S. DoJ in April 2000

III. Agreement Between the Government of the United States of America and the European Communities on the Application of Positive Comity Principles in the Enforcement of their Competition Laws

IV. Recommendation of the Council Concerning Effective Action Against Hard Core Cartels [C(98)35/Final]

V. Antitrust Enforcement Guidelines for International Operations, Issued by the U.S. DoJ and the FTC in April 1995


Antitrust Guidelines for the Licensing of Intellectual Property
Issued by the U.S. DOJ and the FTC

April 6, 1995


1. Intellectual property protection and the antitrust laws

2. General principles
  2.1 Standard antitrust analysis applies to intellectual property
  2.2 Intellectual property and market power
  2.3 Procompetitive benefits of licensing

3. Antitrust concerns and modes of analysis
  3.1 Nature of the concerns
  3.2 Markets affected by licensing arrangements
    3.2.1 Goods markets
    3.2.2 Technology markets
    3.2.3 Reseach and development: Innovation markets
  3.3 Horizontal and vertical relationships
  3.4 Framework for evaluating licensing restraints

4. General principles concerning the Agencies' evaluation of licensing arrangements
  4.1 Analysis of anticompetitive effects
    4.1.1 Market structure, coordination, and foreclosure
    4.1.2 Licensing arrangements involving exclusivity
  4.2 Efficiencies and justifications
  4.3 Antitrust "safety zone"

5. Application of general principles
  5.1 Horizontal restraints
  5.2 Resale price maintenance
  5.3 Tying arrangements
  5.4 Exclusive dealing
  5.5 Cross-licensing and pooling arrangements
  5.6 Grantbacks
  5.7 Acquisition of intellectual property rights

6. Enforcement of invalid intellectual property rights

1. Intellectual property protection and the antitrust laws

  1.0 These Guidelines state the antitrust enforcement policy of the U.S. Department of Justice and the Federal Trade Commission (individually, "the Agency," and collectively, "the Agencies") with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law, and of know-how. By stating their general policy, the Agencies hope to assist those who need to predict whether the Agencies will challenge a practice as anticompetitive. However, these Guidelines cannot remove judgment and discretion in antitrust law enforcement. Moreover, the standards set forth in these Guidelines must be applied in unforeseeable circumstances. Each case will be evaluated in light of its own facts, and these Guidelines will be applied reasonably and flexibly.

  In the United States, patents confer rights to exclude others from making, using, or selling in the United States the invention claimed by the patent for a period of seventeen years from the date of issue. To gain patent protection, an invention (which may be a product, process, machine, or composition of matter) must be novel, nonobvious, and useful. Copyright protection applies to original works of authorship embodied in a tangible medium of expression. A copyright protects only the expression, not the underlying ideas. Unlike a patent, which protects an invention not only from copying but also from independent creation, a copyright does not preclude others from independently creating similar expression. Trade secret protection applies to information whose economic value depends on its not being generally known. Trade secret protection is conditioned upon efforts to maintain secrecy and has no fixed term. As with copyright protection, trade secret protection does not preclude independent creation by others.

  The intellectual property laws and the antitrust laws share the common purpose of promoting innovation and enhancing consumer welfare. The intellectual property laws provide incentives for innovation and its dissemination and commercialization by establishing enforceable property rights for the creators of new and useful products, more efficient processes, and original works of expression. In the absence of intellectual property rights, imitators could more rapidly exploit the efforts of innovators and investors without compensation. Rapid imitation would reduce the commercial value of innovation and erode incentives to invest, ultimately to the detriment of consumers. The antitrust laws promote innovation and consumer welfare by prohibiting certain actions that may harm competition with respect to either existing or new ways of serving consumers.

2. General principles

  2.0 These Guidelines embody three general principles:

  for the purpose of antitrust analysis, the Agencies regard intellectual property as being essentially comparable to any other form of property; the Agencies do not presume that intellectual property creates market power in the antitrust context; and the Agencies recognize that intellectual property licensing allows firms to combine complementary factors of production and is generally procompetitive.

  2.1 Standard antitrust analysis applies to intellectual property

  ……Intellectual property law bestows on the owners of intellectual property certain rights to exclude others. These rights help the owners to profit from the use of their property. An intellectual property owner's rights to exclude are similar to the rights enjoyed by owners of other forms of private property. As with other forms of private property, certain types of conduct with respect to intellectual property may have anticompetitive effects against which the antitrust laws can and do protect. Intellectual property is thus neither particularly free from scrutiny under the antitrust laws, nor particularly suspect under them.

  The Agencies recognize that the licensing of intellectual property is often international. The principles of antitrust analysis described in these Guidelines apply equally to domestic and international licensing arrangements. However, as described in the 1995 Department of Justice and Federal Trade Commission Antitrust Enforcement Guidelines for International Operations, considerations particular to international operations, such as jurisdiction and comity, may affect enforcement decisions when the arrangement is in an international context.

  2.2 Intellectual property and market power

  Market power is the ability profitably to maintain prices above, or output below, competitive levels for a significant period of time. The Agencies will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner. Although the intellectual property right confers the power to exclude with respect to the specific product, process, or work in question, there will often be sufficient actual or potential close substitutes for such product, process, or work to prevent the exercise of market power. If a patent or other form of intellectual property does confer market power, that market power does not by itself offend the antitrust laws. As with any other tangible or intangible asset that enables its owner to obtain significant supracompetitive profits, market power (or even a monopoly) that is solely "a consequence of a superior product, business acumen, or historic accident" does not violate the antitrust laws. Nor does such market power impose on the intellectual property owner an obligation to license the use of that property to others. As in other antitrust contexts, however, market power could be illegally acquired or maintained, or, even if lawfully acquired and maintained, would be relevant to the ability of an intellectual property owner to harm competition through unreasonable conduct in connection with such property.

3. Antitrust concerns and modes of analysis

  3.1 Nature of the concerns

  While intellectual property licensing arrangements are typically welfare-enhancing and procompetitive, antitrust concerns may nonetheless arise. For example, a licensing arrangement could include restraints that adversely affect competition in goods markets by dividing the markets among firms that would have competed using different technologies. See, e.g., Example 7. An arrangement that effectively merges the research and development activities of two of only a few entities that could plausibly engage in research and development in the relevant field might harm competition for development of new goods and services. See section 3.2.3. An acquisition of intellectual property may lessen competition in a relevant antitrust market. See section 5.7. The Agencies will focus on the actual effects of an arrangement, not on its formal terms…..

  3.2 Markets affected by licensing arrangements

  Licensing arrangements raise concerns under the antitrust laws if they are likely to affect adversely the prices, quantities, qualities, or varieties of goods and services either currently or potentially available. The competitive effects of licensing arrangements often can be adequately assessed within the relevant markets for the goods affected by the arrangements. In such instances, the Agencies will delineate and analyze only goods markets. In other cases, however, the analysis may require the delineation of markets for technology or markets for research and development (innovation markets) ….

  3.3 Horizontal and vertical relationships

  As with other property transfers, antitrust analysis of intellectual property licensing arrangements examines whether the relationship among the parties to the arrangement is primarily horizontal or vertical in nature, or whether it has substantial aspects of both…

The existence of a horizontal relationship between a licensor and its licensees does not, in itself, indicate that the arrangement is anticompetitive. Identification of such relationships is merely an aid in determining whether there may be anticompetitive effects arising from a licensing arrangement. Such a relationship need not give rise to an anticompetitive effect, nor does a purely vertical relationship assure that there are no anticompetitive effects…..

  3.4 Framework for evaluating licensing restraints

  In the vast majority of cases, restraints in intellectual property licensing arrangements are evaluated under the rule of reason. The Agencies' general approach in analyzing a licensing restraint under the rule of reason is to inquire whether the restraint is likely to have anticompetitive effects and, if so, whether the restraint is reasonably necessary to achieve procompetitive benefits that outweigh those anticompetitive effects. See Federal Trade Commission v. Indiana Federation of Dentists, 476 U.S. 447 (1986); NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984); Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979); 7 Phillip E. Areeda, Antitrust Law § 1502 (1986). See also part 4.

  In some cases, however, the courts conclude that a restraint's "nature and necessary effect are so plainly anticompetitive" that it should be treated as unlawful per se, without an elaborate inquiry into the restraint's likely competitive effect. Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411, 433 (1990); National Society of Professional Engineers v. United States, 435 U.S. 679, 692 (1978). Among the restraints that have been held per se unlawful are naked price-fixing, output restraints, and market division among horizontal competitors, as well as certain group boycotts and resale price maintenance.

  To determine whether a particular restraint in a licensing arrangement is given per se or rule of reason treatment, the Agencies will assess whether the restraint in question can be expected to contribute to an efficiency-enhancing integration of economic activity. ….

4. General principles concerning the Agencies' evaluation of licensing arrangements under the rule of reason

  4.1 Analysis of anticompetitive effects

  The existence of anticompetitive effects resulting from a restraint in a licensing arrangement will be evaluated on the basis of the analysis described in this section.

  4.1.1 Market structure, coordination, and foreclosure

  When a licensing arrangement affects parties in a horizontal relationship, a restraint in that arrangement may increase the risk of coordinated pricing, output restrictions, or the acquisition or maintenance of market power. Harm to competition also may occur if the arrangement poses a significant risk of retarding or restricting the development of new or improved goods or processes. The potential for competitive harm depends in part on the degree of concentration in, the difficulty of entry into, and the responsiveness of supply and demand to changes in price in the relevant markets. Cf. 1992 Horizontal Merger Guidelines §§ 1.5, 3.


  4.3 Antitrust "safety zone"

  Because licensing arrangements often promote innovation and enhance competition, the Agencies believe that an antitrust "safety zone" is useful in order to provide some degree of certainty and thus to encourage such activity. Absent extraordinary circumstances, the Agencies will not challenge a restraint in an intellectual property licensing arrangement if (1) the restraint is not facially anticompetitive and (2) the licensor and its licensees collectively account for no more than twenty percent of each relevant market significantly affected by the restraint. This "safety zone" does not apply to those transfers of intellectual property rights to which a merger analysis is applied. See section 5.7.


5. Application of general principles

  5.0 This section illustrates the application of the general principles discussed above to particular licensing restraints and to arrangements that involve the cross-licensing, pooling, or acquisition of intellectual property. The restraints and arrangements identified are typical of those that are likely to receive antitrust scrutiny; however, they are not intended as an exhaustive list of practices that could raise competitive concerns.

  5.1 Horizontal restraints


  Following the general principles outlined in section 3.4, horizontal restraints often will be evaluated under the rule of reason. In some circumstances, however, that analysis may be truncated; additionally, some restraints may merit per se treatment, including price fixing, allocation of markets or customers, agreements to reduce output, and certain group boycotts.


  5.7 Acquisition of intellectual property rights

  Certain transfers of intellectual property rights are most appropriately analyzed by applying the principles and standards used to analyze mergers, particularly those in the 1992 Horizontal Merger Guidelines. The Agencies will apply a merger analysis to an outright sale by an intellectual property owner of all of its rights to that intellectual property and to a transaction in which a person obtains through grant, sale, or other transfer an exclusive license for intellectual property (I.e., a license that precludes all other persons, including the licensor, from using the licensed intellectual property). Such transactions may be assessed under section 7 of the Clayton Act, sections 1 and 2 of the Sherman Act, and section 5 of the Federal Trade Commission Act.

II. ……
III. ……
IV. ……
V. Antitrust Enforcement Guidelines for International Operations, Issued by the U.S. DoJ and the FTC in April 1995







  2.1 适用于知识产权的标准反托拉斯分析
  2.2 知识产权和市场力量
  2.3 许可的竞争好处

  3.1 问题的本质
  3.2 受许可影响的市场
    3.2.1 货物市场
    3.2.2 技术市场
    3.2.3 研究与开发: 创新市场
  3.3 水平与垂直关系
  3.4 许可限制的评估框架

  4.1 反竞争效果分析
    4.1.1 市场结构、协调与预先禁止安排
    4.1.2 涉及排他性的许可安排
  4.2 效益与理由
  4.3 反托拉斯"安全区"

  5.1 水平限制
  5.2 维持零售价格
  5.3 搭售安排
  5.4 排他交易
  5.5 交叉许可与集体安排
  5.6 回授
  5.7 购买知识产权


1. 知识产权保护与反托拉斯法

  1.0 本《指南》说明美国司法部和美国联邦贸易委员会(单独或统称为"主管机关")有关知识产权和专有技术许可方面的反托拉斯执法政策,涉及的这些知识产权受专利、版权和商业秘密法保护。通过对其一般政策进行说明,主管机关希望对需要的人提供帮助,使其初步预测主管机关认定某种做法是否具有反竞争性。但是,本《指南》并不排除反托拉斯执法过程中需要具体进行判决和裁决。另外,本《指南》中规定的各项标准,必须适用于各种不可预见的情况。不同的情况需根据具体事实进行评估,要合理、灵活地使用本《指南》。



2. 一般原则

  2.0 本《指南》体现以下三个一般原则:


  2.1 有形、无形财产知识产权标准反托拉斯分析



  2.2 知识产权和市场力量


3. 反托拉斯问题与分析模式

  3.1 问题的本质


  3.2 受许可影响的市场


  3.3 水平与垂直关系



  3.4 许可限制的评估框架


  但是在有些情况下,法院判决认为,限制的"性质和必然效果如此明显的具有反竞争性",所以本身应该判定为非法,不需要更进一步研究限制可能产生的竞争影响。联邦贸易委员会诉最高法院审判律师协会案(493 U.S. 411, 433 (1990));美国全国专业工程师学会诉美国案(435 U.S. 679, 692 (1978))。判定为本身违法的限制情况有:水平竞争对手之间的公开固定价格、产量限制和市场划分,以及某些集体抵制和维持零售价格等。


4. 主管机关根据合理规则评估许可安排的一般原则

  4.1 反竞争效果分析


  4.1.1 市场结构、协调与预先禁止安排



  4.3 反托拉斯"安全区"



5. 一般原则的适用

  5.0 本节说明将上述一般原则如何应用于涉及知识产权交叉许可、集体管理和购买的特定许可限制和安排。识别出的这些产权许可限制和安排是可能受到反托拉斯法审查的范例,但是,并不是能引起竞争问题的所有做法方面的清单。

  5.1 水平限制




  5.7 购买知识产权



  1 简介
  2 各机关实施的不同反托拉斯法
    2.1 《谢尔曼法》
    2.2 《克莱顿法》
    2.3 《联邦贸易委员会法》
    2.4 《1976年哈特-司各特-罗迪诺反托拉斯改进法》
    2.5 《全国合作研究与生产法》
    2.6 《韦布-波米琳法案》
    2.7 《1982年出口贸易公司法》
    2.8 其他相关立法
      2.8.1 《威尔逊关税法》
      2.8.2 《1916年反倾销法》
      2.8.3 《1930年关税法》 反补贴关税 反倾销关税 第337节
      2.8.4 《1974年贸易法》 第201节 第301节
    2.9 相关国际协议
      2.9.1 双边合作协议
      2.9.2 国际指南与建议
  3 国际执法门槛问题
    3.1 管辖权
      3.1.1 进口商业行为管辖权
      3.1.2 其他外国商业行为管辖权 《1982年对外贸易反托拉斯改进法》第1(一)小节项下案例有关的管辖权
          范例 三 《1982年对外贸易反托拉斯改进法》第1(二)小节项下案例有关的管辖权
      3.1.3 与美国政府融资或购买有关的管辖权
      3.1.4 《克莱顿法》第7节项下的管辖权
    3.2 礼让
    3.3 外国政府参与的效果
      3.3.1 外国主权豁免
      3.3.2 外国主权强制
      3.3.3 国家行为
      3.3.4 主权请求
    3.4 反托拉斯执法与国际贸易管制
  4 对人管辖权与程序规则
    4.1 对人管辖权与审判地
    4.2 与外国有关的调查做法
      4.2.2 《哈特-司各特-罗迪诺法》:特殊外国商业规则