or price-fixing for any product or service supplied by the licensees.[1] If the license agreements contained any such provision, the Agency evaluating the arrangement would analyze its likely competitive effects as described in parts 3-5 of these Guidelines.
In this hypothetical, there are no such provisions and thus the licensing arrangement does not appear likely to harm competition among entities that would have been actual or potential competitors if ComputerCo had chosen not to license the software program. The arrangement is merely a subdivision of the licensor’s intellectual property among different fields of use and territories. The Agency therefore would be unlikely to object to this arrangement.[2] The Agency’s conclusion as to likely competitive effects could differ if, for example, the license barred licensees from using any other inventory management program.
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.[3] An arrangement that effectively merges the activities of two actual or potential competitors in research and development in the relevant field might harm competition for development of new goods and services.[4] An acquisition of intellectual property may lessen competition in a relevant antitrust market.[5] The Agencies will focus on the actual or likely effects of an arrangement, not on its formal terms.
The Agencies ordinarily will not require the owner of intellectual property to create competition in its own technology.[6] However, antitrust concerns may arise when a licensing arrangement
- ↑ See section 3.1.
- ↑ The antitrust analysis of the facts in this hypothetical would not differ, regardless of whether the technology was protected by patent, copyright, or trade secret.
- ↑ See, e.g., Example 6.
- ↑ See section 3.2.3.
- ↑ See section 5.7.
- ↑ Moreover, as noted in section 2.2 above, “market power [does not] impose on the intellectual property owner an obligation to license the use of that property to others.” The Agencies may, however, impose licensing requirements to remedy anticompetitive harm or, in the case of a merger, to prevent the substantial lessening of
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