Updating policies that had been on the books for more than two decades, the U.S. Department of Justice and the Federal Trade Commission recently issued new Antitrust Guidelines for the Licensing of Intellectual Property.
The new Guidelines include several updates that reflect changes in the law since the 1995 guidelines were issued. For example, the new Guidelines now permit intellectual property license agreements to explicitly include provisions on resale price without being per se illegal. (Instead, price restraints in licensing agreements will now be analyzed under the rule of reason). The new Guidelines also contain changes relating to situations where an intellectual property license or transfer will be treated as a merger.