arrangement do not outweigh the anticompetitive effects.[1] The Agencies will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner.[2]
Package licensing—the licensing of multiple items of intellectual property in a single license or in a group of related licenses—may be a form of tying arrangement if the licensing of one intellectual property right is conditioned upon the acceptance of a license of another, separate intellectual property right. Package licensing can be efficiency enhancing under some circumstances. When multiple licenses are needed to use any single item of intellectual property, for example, a package license may promote such efficiencies. If a package license constitutes a tying arrangement, the Agencies will evaluate its competitive effects under the same principles they apply to other tying arrangements.
5.4 Exclusive Dealing
In the intellectual property context, exclusive dealing occurs when a license prevents the licensee from licensing, selling, distributing, or using competing technologies. Exclusive dealing arrangements are evaluated under the rule of reason.[3] In determining whether an exclusive dealing arrangement is likely to reduce competition in a relevant market, the Agencies will take into account the extent to which the arrangement (1) promotes the exploitation and development of the licensor’s technology and (2) anticompetitively forecloses the exploitation and development of, or otherwise constrains competition among, competing technologies.
The likelihood that exclusive dealing may have anticompetitive effects is related, inter alia, to the degree of foreclosure in the relevant market, the duration of the exclusive dealing arrangement, and other characteristics of the input and output markets, such as concentration, difficulty of entry, and the responsiveness of supply and demand to changes in price in the relevant markets.[4] If the Agencies determine that a particular exclusive dealing arrangement may have an anticompetitive effect, they will evaluate the extent to which the restraint
- ↑ See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 95-96 (D.C. Cir. 2001) (en banc) (per curiam) (rejecting the application of a per se rule to “platform software”). As is true throughout these Guidelines, the factors listed are those that guide the Agencies’ internal analysis in exercising their prosecutorial discretion. They are not intended to circumscribe how the Agencies will conduct the litigation of cases that they decide to bring.
- ↑ See Ill. Tool Works, 547 U.S. 28.
- ↑ See Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320 (1961) (evaluating legality of exclusive dealing under sections 1 and 2 of the Sherman Act and section 3 of the Clayton Act); Beltone Elecs. Corp., 100 F.T.C. 68 (1982) (evaluating legality of exclusive dealing under section 5 of the Federal Trade Commission Act).
- ↑ See sections 4.1.1 and 4.1.2.
29
