Patently-O sums up the "gems" from the FTC/DOJ report:

* Refusal to license patents to competitors - without more - will not raise antitrust concerns.

* Conditional refusals, on the other hand, are subject to antitrust scrutiny.

* Standard setting negotiations, cross-licensing, & patent pools are not per se violations, but are reviewed under the rule of reason framework.

* The starting point for evaluating practices that extend beyond a patent’s expiration is an analysis of whether the patent in question confers market power. If so, these practices will be evaluated under the agencies’ traditional rule of reason framework, unless the agencies find a particular practice to be a sham cover for naked price fixing or market allocation.

* Collecting royalties beyond a patent’s statutory term can be efficient.

Notably absent from the report are issues involving pharmaceutical reverse-payments where the two departments have recently knocked-heads.

Patent guru Harold Wegner (by email) gives the report a a tepid review:

There surely must be something in this report . . . . Two scholars have pointed out the liberalization of post-expiration royalty policy, while Dennis Crouch has posted a thoughtful analysis on his Patently O blog. Otherwise, the report seems to have all the spice and excitement of the children’s breakfast cereal.

posted by James DeLong @ 3:03 PM | Antitrust, Markets: Business, Investment & Innovation

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