By Willard K. Tom

In the fierce debates over the proper relationship between antitrust and intellectual property, some of the hard-won underlying principles of the 1995 Antitrust Guidelines for the Licensing of Intellectual Property risks being forgotten. Of particular importance are: (1) the implications of applying the rule of reason, (2) the distinction between horizontal and vertical relationships, and (3) the importance of maintaining the incentive for licensing and therefore for innovation. Forgetting the history that predated the Guidelines and allowing a drift back to the nominalist approach of the Nine No-No’s risks misguided antitrust enforcement that reduces the incentive for licensing and thus diverts investment from more productive to less productive uses. This article summarizes that history and the principles that grew out of its lessons.

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