Page:Antitrust Guidelines for the Licensing of Intellectual Property.pdf/3

 1 Intellectual Property Protection and the Antitrust Laws

1.0 These Guidelines state the antitrust enforcement policy of the U.S. Department of Justice and the Federal Trade Commission (individually, “the Agency,” and collectively, “the Agencies”) with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law, and of know-how. By stating their general policy, the Agencies hope to assist those who need to predict whether the Agencies will challenge a practice as anticompetitive. However, these Guidelines cannot remove judgment and discretion in antitrust law enforcement. The Agencies will evaluate each case in light of its own facts and apply these Guidelines reasonably and flexibly.

In the United States, patents confer rights to exclude others from making, using, or selling in the United States the invention claimed by the patent for a set period of time. To gain patent protection, an invention (which may be a product, process, machine, or composition of matter) must be novel, nonobvious, useful, and sufficiently disclosed. Copyright protection applies to original works of authorship fixed in a tangible medium of expression. Copyright protection applies only to the expression, not the underlying ideas. Unlike a patent, which protects an invention not only from copying but also from subsequent independent creation by others, a