Page:Antitrust Guidelines for the Licensing of Intellectual Property.pdf/8

 property and to develop additional applications for the licensed property. The restrictions may do so, for example, by protecting the licensee against free riding on the licensee’s investments by other licensees or by the licensor. They may also increase the licensor’s incentive to license, for example, by protecting the licensor from competition in the licensor’s own technology in a market niche that it prefers to keep to itself. These benefits of licensing restrictions apply to patent, copyright, and trade secret licenses, and to know-how agreements.

Example 1

Situation: ComputerCo develops a new, copyrighted software program for inventory management. The program has wide application in the health field. ComputerCo licenses the program in an arrangement that imposes both field of use and territorial limitations. Some of ComputerCo’s licenses permit use only in hospitals; others permit use only in group medical practices. ComputerCo charges different royalties for the different uses. All of ComputerCo’s licenses permit use only in specified portions of the United States and in specified foreign countries. The licenses contain no provisions that would prevent or discourage licensees from developing, using, or selling any other program, or from competing in any other good or service other than in the use of the licensed program. None of the licensees is an actual or potential competitor of ComputerCo in the sale of inventory management programs.

Discussion: The licenses at issue appear to facilitate the combination of ComputerCo’s copyrighted software with the licensee health care providers’ complementary factors of production and may offer potential procompetitive benefits. The key competitive issue raised by the licensing arrangement is whether it includes any provisions that are likely to harm competition among entities that would have been actual or potential competitors in the absence of the arrangement. Such harm could occur if, for example, the licenses anticompetitively foreclose access to competing technologies (in this case, most likely competing computer programs), prevent licensees from developing their own competing technologies (again, in this case, most likely computer programs), or facilitate market allocation