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INNOVATION MARKETS: NEW WINE IN OLD BOTTLES?

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TL;DRAbstract

On April 6, 1995, the Department of Justice and the Federal Trade Commission issued the Antitrust Guidelines for the Licensing of Intellectual Property (Intellectual Property Guidelines).1 The Guidelines went well beyond mere licensing issues. In part 3.2.3, they considered merger analysis under Section 7 of the Clayton Act,2 addressing what the agencies called separate innovation market, defined to consist of: the research and development directed to particular new or improved goods or processes, and the close substitutes for that research and development. The close substitutes are research and development efforts, technologies, and goods25 that significantly constrain the exercise of market power with respect to the relevant research and development, for example by limiting the ability and incentive of a hypothetical monopolist to retard the pace of research and development.

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On April 6, 1995, the Department of Justice and the Federal Trade Commission issued the Antitrust Guidelines for the Licensing of Intellectual Property (Intellectual Property Guidelines).1 The Guidelines went well beyond mere licensing issues. In part 3.2.3, they considered merger analysis under Section 7 of the Clayton Act,2 addressing what the agencies called separate innovation market, defined to consist of: the research and development directed to particular new or improved goods or processes, and the close substitutes for that research and development. The close substitutes are research and development efforts, technologies, and goods25 that significantly constrain the exercise of market power with respect to the relevant research and development, for example by limiting the ability and incentive of a hypothetical monopolist to retard the pace of research and development.

Keywords

Intellectual propertyCommissionMarket powerIncentiveBusinessLimitingPaceEconomic Justice

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