in the safety zone is based on the factual circumstances prevailing at the time of the conduct at issue.[1]
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 competition concerns.
5.1 Horizontal Restraints
The existence of a restraint in a licensing arrangement that affects parties in a horizontal relationship (a “horizontal restraint”) does not necessarily cause the arrangement to be anticompetitive. As in the case of joint ventures among horizontal competitors, licensing arrangements among such competitors may promote rather than hinder competition if they result in integrative efficiencies. Such efficiencies may arise, for example, from the realization of economies of scale and the integration of complementary research and development, production, and marketing capabilities.
Following the general principles outlined in section 3.4, the Agencies will often evaluate horizontal restraints under the rule of reason. Additionally, some restraints may merit per se treatment, including price-fixing, allocation of markets or customers, agreements to reduce output, and certain group boycotts.
Example 8
Situation: Two of the leading manufacturers of a consumer electronic product hold patents that cover alternative circuit designs for the product. The manufacturers assign their patents to a separate corporation wholly owned by the two firms. That corporation licenses the right to use the circuit designs to other consumer product manufacturers and establishes the license royalties. None of the patents is blocking; that is, each of the patents can be used without infringing a patent owned by the other firm. The different circuit designs are substitutable in
- ↑ The conduct at issue may be the transaction giving rise to the restraint or the subsequent implementation of the restraint.
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