Licensing Agreements Antitrust
United States: U.S. guidelines do not deal with non-contest clauses. While these licensing restrictions in the United States generally do not raise problems with cartels, courts consider that prohibitions on challenging the validity of licensed intellectual property rights are generally unenforceable under other legal principles, except in very narrow circumstances.  MPEG-2 is a digital video compression technology used in many different products and services, including DVDs and telecommunications, as well as cable, satellite and broadcast television. (59) In the case of the manufacture of MPEG-2-compliant products, a company could infringe the patent rights of many different rights holders. As a result, companies interested in adopting MPEG-2 have put an independent patent expert looking for “essential” patents to their implementation. (60) Nine companies (61) that held 27 essential patents (62) formed, with another company (63) MPEG LA, the pool`s licensing manager. (64) MPEG LA retains an independent technical expert to determine whether other patents are essential to the MPEG-2 standard. (65) MPEG LA provides a set of hardware and software licenses for pool members` patents that are “essential” to meet the MPEG-2 standard and distributes licensing revenues to patent contributors by patent. (66) Pool members and third parties may challenge the “essential” nature of patents in the pool, i.e.
whether access to patents in the pool is really necessary to manufacture products in accordance with the standard. (67) The Pool Licensing Agreement also requires each licensee to grant pool members licenses for all MPEG-2-related patents that the licensee may have or develop. (68) The Department`s analyses of the expected effects of these pools on competition and the 3G patent platform as part of their review process may differ from decisions made in the context of enforcement investigations. (101) In the corporate letters of inquiry, the parties are informed of the Department`s intentions for implementation, which are largely based on the parties` description of the relevant facts before the proposed activity began. Parties seeking favourable business review often include mechanisms to eliminate or minimize the risk of anti-competitive effects in order to give the Department sufficient confidence in its assessment of the likely effects of the proposed activity on competition to allow for the issuance of a favourable letter. (102) On the other hand, conduct investigations generally deal with the question of whether a party has violated or violated the law of cartels and abuse of dominance.