Page:Antitrust Guidelines for the Licensing of Intellectual Property.pdf/29

 that each permits the manufacture at comparable cost to consumers of products that consumers consider to be interchangeable.

Discussion: In this example, the manufacturers are horizontal competitors in the goods market for the consumer product and in the related technology markets. The competitive issue with regard to a joint assignment of patent rights is whether the assignment has an adverse impact on competition in technology and goods markets that is not outweighed by procompetitive efficiencies, such as benefits in the use or dissemination of the technology. Each of the patent owners has a right to exclude others from using its patent. That right does not extend, however, to the agreement to assign rights jointly. To the extent that the patent rights cover technologies that are close substitutes, the joint determination of royalties likely would result in higher royalties and higher goods prices than would result if the owners licensed or used their technologies independently. In the absence of evidence establishing efficiency-enhancing integration from the joint assignment of patent rights, the Agency may conclude that the joint marketing of competing patent rights constitutes horizontal price-fixing and could be challenged as a per se unlawful horizontal restraint of trade. If the joint marketing arrangement results in an efficiency-enhancing integration, the Agency would evaluate the arrangement under the rule of reason. However, the Agency may conclude that the anticompetitive effects are sufficiently apparent, and the claimed integrative efficiencies are sufficiently weak or not reasonably related to the restraints to warrant challenge of the arrangement without an elaborate analysis of particular industry circumstances.

5.2 Price Maintenance

Minimum Resale Price Maintenance (RPM) typically refers to a vertical pricing arrangement in which a manufacturer requires its resellers to agree to sell the manufacturer’s products at or above a specified minimum price. An analogous arrangement can occur in the intellectual property context when a licensor conditions a license on the resale price of the product incorporating the licensed technology.

As with RPM agreements that apply to outright sales of goods, the Agencies will apply a rule of reason analysis to price maintenance in intellectual property licensing agreements. The