Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ

Douglas Ginsburg, Joshua Wright, Dec 20, 2013

In modern antitrust law, intellectual property rights (IPRs) are treated like all other forms of property. Beginning with the Department of Justice Antitrust Division’s repudiation of the “Nine No-No’s” for patent licensing more than thirty years ago, the US antitrust enforcement agencies and the courts have adhered to a largely symmetrical approach to antitrust enforcement involving all kinds of property. The principle of symmetry was made express in the 1995 Guidelines for the licensing of intellectual property, issued jointly by the Department of Justice and the Federal Trade Commission…

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