1. Overview of Intellectual Property
2. Rules of Antitrust Intellectual Property

In an antitrust intellectual property, intellectual property owners have the right to monetize their inventions against potential competitors. They're also protected against claims that are unwarranted for intellectual property exclusivity. The main legal challenges are defined by antitrust and intellectual property and largely influence innovation in all industry sectors. The rights of property owners protect their contribution while excluding others from trying to compete.

Overview of Intellectual Property

One of the disturbing trends today with respect to international antitrust authorities is that they use the existing laws to devalue intellectual property rights. They also get involved with licensing disputes and tend to favor one side over the other. The authorities also tend to use extra-jurisdictional remedies that are unwarranted on patent licensing. For example, foreign governments will tell companies in the United States how to price U.S. patents as well as foreign ones. This is becoming a serious problem for the following areas:

  • Economic growth
  • Consumers
  • Innovation

The latest antitrust rules are intended to regulate price by forming an antitrust sanction that charges a royalty based on a certain percentage of the sale price of the end-user device compared to the smallest part of the component. These rules look past the economic evidence proving that the current practice of end-user device licensing often results in lower prices overall for consumers. They also ignore the fact that wireless cellular technologies tend to read on the device or system level instead of the component level.

Rules of Antitrust Intellectual Property

The rules regarding antitrust intellectual property get in the way of private, closer negotiations in patent licensing while ignoring many considerations that a party might use to select a royalty base. Reducing administrative costs and transactions are two of these considerations. An example is the $865 million fine Korea levied against Qualcomm. Their antitrust authority wants to control how the company licenses its patents and to be the world's competition police by imposing remedies not just on Korean patents, but also on non-Korean patents.

Some remedies are at odds with principles of international comity. They're likely to end in large, substantive conflicts with competition agents from other countries based on the large range of approaches that are taken on antitrust globally. Honoring the principles of comity can resolve a race to the bottom when it comes to competition law enforcement by avoiding the lowest common denominator approach from ruling across the board. The United States antitrust agencies took a variety of positions under the Obama Administration regarding intellectual property rights that are sometimes contrary and unsupported by the economic evidence.

These positions let foreign antitrust authorities have a cover for using their antitrust laws to unjustly decrease royalty rates for patent holders in the United States to unfairly benefit their domestic manufacturers. A change in legal perspective has taken place over the past two decades. There is now more clarity on the exclusionary rights of patent holders and other intellectual property, thanks to the courts. Federal enforcement agencies started making it their policy that intellectual property was comparable to any other type of property.

Holders of patents and other kinds of intellectual property enjoy the benefit of the law with respect to their works and inventions. However, they must wade through a wide array of antitrust regulations and rules. Sections 1 and 2 of the Sherman Antitrust Act apply to the use and licensing of intellectual property. The first section deals with agreements between multiple parties in restraint of trade and is the main antitrust law when it comes to regulating intellectual property licenses.

The second section of the Sherman Act deals with monopolization and monopolization attempts. This governs unilateral conduct by the intellectual property owners who have a dominant position in a market that's relevant. A sale of intellectual property or an exclusive license is subject to antitrust scrutiny under the acquisitions and mergers provisions of the Clayton Act. Intellectual property holders also face antitrust enforcement by both the enforcement authorities at state and federal levels and by private plaintiffs.

The FTC, or Federal Trade Commission, is in charge of enforcement for Section 5 of the FTC Act, which allows the agency to have statutory authority to enjoy noncompetitive conduct.

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