The Agencies recognize that the licensing of intellectual property is often global. Consideration of whether the U.S. antitrust laws apply to such intellectual property-related conduct and whether international comity or the involvement of a foreign government counsels against investigation or enforcement may be necessary.[1] When the Agencies determine that a sufficient nexus to the United States exists to apply the antitrust laws and that considerations of international comity and foreign government involvement do not preclude investigation or enforcement, the principles of antitrust analysis described in these Guidelines apply equally to all licensing arrangements.
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.[2] 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.[3] If an intellectual property right does confer market power, that market power does not by itself offend the antitrust laws. As with any other 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.[4] 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, an intellectual property owner could illegally acquire or maintain market power. Furthermore, even if it lawfully acquired or
- ↑ For further guidance on these considerations, see the Department of Justice and Federal Trade Commission Antitrust Guidelines for International Enforcement and Cooperation (2017).
- ↑ Market power can be exercised in other economic dimensions, such as quality, service, and the development of new or improved goods and processes. It is assumed in this definition that all competitive dimensions are held constant except the ones in which market power is being exercised; that a seller is able to charge higher prices for a higher-quality product does not alone indicate market power. The definition in the text is stated in terms of a seller with market power. A buyer could also exercise market power (e.g., by maintaining the price below the competitive level, thereby depressing output).
- ↑ Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45-46 (2006) (“Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion.”); see also Mediacom Commc’ns Corp. v. Sinclair Broad. Grp., 460 F. Supp. 2d 1012, 1027-28 (S.D. Iowa 2006) (applying Independent Ink to copyright).
- ↑ United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966); see also United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir. 1945) (holding that the Sherman Act is not violated by the attainment of market power solely through “superior skill, foresight and industry”).
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