| Chapter III: Compulsory Licensing as Remedy to Anticompetitive Practices |
SUMMARY: In settlement of alleged violations of federal law prohibiting unfair acts and practices and unfair methods of competition, this consent agreement, accepted subject to final Commission approval, would permit, among other things, Boston Scientific Corporation, a Massachusetts-based manufacturer and marketer of catheters, to proceed with the proposed acquisitions of Cardiovascular Imaging Systems, Inc., and SCIMED Life Systems, Inc., but would require the respondent to grant a non-exclusive license to a specified package of patents and technology related to the manufacture, production and sale of intravascular ultrasound (IVUS) imaging catheters to the Hewlett- Packard Company or another Commission-approved licensee.
A. If Upjohn and Pharmacia have not divested, absolutely and in good faith and with the Commission's prior approval, Pharmacia's 9-AC Assets within the time required by Paragraph II.A., of this Order, the Commission may appoint a trustee to divest, at Pharmacia's option, either (1) an exclusive United States license and a nonexclusive worldwide (excluding the United States) license in perpetuity, and in good faith, to all Pharmacia's assets relating to the research and development of 9-AC for sale throughout the world or (2) an exclusive worldwide license, in perpetuity, and in good faith, to all Pharmacia's assets relating to the research and development of 9-AC for sale throughout the world.
"The appearance of a United States government agency imposing a compulsory patent license, especially a royalty-free compulsory license, must be avoided except in response to egregious conduct. Other countries could cite such an action as the basis for imposing broad and onerous compulsory licensing requirements upon United States patentees abroad."
[This} is a case in which, we alleged that a patent license agreement between the defendants violated Section 1 of the Sherman Act. Johnson dominated the highly concentrated U.S. household insecticide market. Bayer developed and patented a new active ingredient for household insecticides and prepared to enter the U.S. market with its own product. It then abandoned its plans and granted a license for its active ingredient to Johnson. It did not license any other U.S. manufacturer. The case was settled by consent decree, which in part requires Bayer to license its ingredient to other interested parties for the United States.
the Division charged that Microsoft, in violation of Section 2 of the Sherman Act, illegally maintained its monopoly in operating systems for personal computers through restrictive licensing agreements with PC makers (called original equipment manufacturers, or "OEMs") and restrictive non-disclosure agreements with independent software vendors. The Complaint also alleged that these agreements were unreasonable restraints of trade in violation of Section 1 of the Sherman Act. One of the provisions in the defendant’s agreements with OEMs required payment to Microsoft for each PC the OEM shipped, whether or not the machine contained any Microsoft software. This provision acted as a tax on OEMs’ use of competing PC operating systems. The case was settled by consent decree, which in part prohibits Microsoft from including certain unreasonably restrictive provisions in its contracts with OEMs and independent software vendors.