Adequacy of the 1995 Antitrust Guidelines for IP Licensing: Commentaries from the 2002 FTC and DOJ Hearings

Abstract

"In October 2003, the FTC issued a report entitled 'To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy' focused on the patent law system. A second report by both agencies is forthcoming and will make similar recommendations for the antitrust law enforcement system. This article discusses whether the FTC has addressed the three common types of license misuse, that is, the refusal to grant intellectual property licenses; misconduct during industry standards setting; and the improper acquisition of broad intellectual property rights through patent settlement agreements involving patent pools, cross-licenses, and generic drug market entry. Generic drug entry has attracted a great deal of interest in light of the diversion of distribution from wholesalers to the multi-billion-dollar shadow market over the Internet, and the controversial Medicare Bill."