Riscos antitrust e estratégias de conformidade na gestão de portfólios de propriedade intelectual

This article analyzes how intellectual property portfolio management can simultaneously promote innovation and present potential antitrust exposure. Strategic creation, acquisition, and deployment of IP assets often enhance a firm’s competitiveness, yet certain practices may provoke scrutiny from antitrust enforcement agencies or private litigants, potentially leading to significant monetary or structural remedies. The article provides a concise framework for understanding how companies can pursue the commercial value of their IP while mitigating antitrust risk through straightforward, cost-effective safeguards.

I. Introdução

Intellectual property (“IP”) portfolio management refers to a company’s approach to advancing corporate goals by creating, acquiring, maintaining, and leveraging intellectual property. While effective IP management can foster innovation and provide a competitive edge, it can also raise antitrust risks in certain scenarios. Potential consequences include agency investigations, private lawsuits (with “treble damages”), forced divestitures, compulsory licensing, and behavioral restrictions.

This article explores the potential procompetitive benefits and anticompetitive concerns associated with IP portfolio management (Section II). It walks through the circumstances under which a company with a meaningful IP portfolio management strategy might encounter antitrust scrutiny, starting with how the antitrust enforcement agencies and courts assess market/monopoly power and a relevant market (Section III). Following this, the article discusses specific actions that could trigger concerns (Section IV) and “safety zones” insulating certain IP licensing practices from government enforcement (Section V). By evaluating these strategies, companies can identify and mitigate antitrust risks with straightforward, cost-effective measures. [2]

II. Procompetitive Benefits and Anticompetitive Concerns With IP-Related Activity

The antitrust laws recognize that companies build broad IP portfolios for legitimate reasons, which can result in lower prices for consumers, enhanced output, and increased innovation. [3] Specifically, a robust IP portfolio can incentivize innovation by allowing companies to (1) exercise temporary exclusive rights to recoup investments without worrying about third parties free-riding off of their efforts; and (2) obtain assurance that they can legitimately commercialize their products without infringing IP rights held by third parties.

Despite these benefits, IP portfolios can raise competition concerns if the portfolios are used to block competitors from entering a market or innovating, rather than to protect genuine innovations. In particular, suggestions in a company’s ordinary-course documents that it is acquiring and managing its IP to build a “competitive moat” or “barriers to entry” can be perceived as an intent to block competition. For the thoughtful IP portfolio manager, it is critical to ensure that the company’s IP strategy is aligned with competition law by recognizing when these strategies risk crossing from legitimate protection into unlawful exclusionary or predatory conduct.

III. Does the Company Have Monopoly Power in a Relevant Market?

A. Market and Monopoly Power

The antitrust laws are primarily concerned with preventing market actors from engaging in abusive practices that ultimately harm consumers by raising prices, lowering output, or diminishing innovation. [4] Accordingly, assessing whether a company’s IP portfolio management practices raise potential antitrust concerns generally begins with determining whether the company possesses sufficient economic power within a properly defined “relevant market.”

Where the conduct in question involves an “agreement” or other multi-party coordination (such as a licensing agreement), antitrust concerns may arise if one of the parties has “market power” within a defined “relevant market.” [5] “Market power” refers to the ability to raise price “above the levels that would be charged in a competitive market.” [6] Merely owning an IP right by itself does not necessarily equate to having market power. [7] Although the assessment is highly fact-intensive, courts generally treat higher market shares as supporting an inference of market power, with Supreme Court precedent indicating that a share on the order of at least 30 to 40% in the relevant market is ordinarily required before market power is found. [8]

But where a single company acts “unilaterally,” the antitrust laws generally require the company to have “monopoly power” (or a “dangerous probability” of acquiring monopoly power) within a relevant market. Monopoly power refers to a significant and durable enough market power “to control prices or exclude competition.” [9] As with market power, determining whether a firm holds monopoly power is complex, but generally speaking, it typically requires something above (or well above) a 50% share. [10]

B. Relevant Market

The ”relevant market” refers to the “area of effective competition, comprising both product (or service) and geographic elements” where a single seller could potentially raise prices significantly without losing customers to other products or services. [11] Defining this “relevant market” is crucial not only for calculating market share but also for understanding the competitive effects of a firm’s conduct. Traditionally, markets were defined around “goods”—that is, involving a particular consumer product or service. [12] For such a “goods” market, authorities may investigate whether a company’s IP practices unreasonably raise the costs or lower the output of those goods, or slow the development of more innovative goods, with no offsetting benefit.

When it comes to IP practices, authorities may also consider adopting narrower relevant markets, increasing the possibility that a firm has a dominant share (and therefore monopoly power) in that market:

• Technology Markets: IP that is licensed (“licensed technology”) and its close substitutes may potentially be considered its own relevant market. These markets exist when rights to IP are traded separately from their end product or service, as opposed to simply licensed, sold, or transferred as an integral part of the underlying end product or service. In such situations, a licensing arrangement can significantly impact competitive conditions by granting or inhibiting access to the licensed technology or close substitutes. [13]
• Research and Development Markets: Research and development (“R&D”) of products and processes intended for future commercialization may constitute a relevant market in its own right, even in the absence of a currently marketed product or service. Prominent examples include molecules, antibodies, and other therapeutic candidates undergoing pre-clinical or clinical-stage testing for their effects on specific diseases or physiological conditions. In such cases, intellectual property can either stimulate or constrain innovation by influencing the direction and pace of R&D activity. [14] For instance, if there are six biotech companies focused on developing treatments for a certain kind of cancer but only three are investing in cutting-edge gene-editing technology to develop new therapies, the DOJ or FTC might contend that the relevant market is for R&D in gene-editing treatments for that cancer, which has only three active players. R&D markets can play important roles when assessing the antitrust implications of patent license agreements, particularly if a license to the patent will prove critical to any future innovation.

IV. IP Practices Potentially Triggering Antitrust Scrutiny

A. IP Prosecution and Acquisition

Patent prosecution and acquisition activities, which involve the strategic use and accumulation of patents by a rights holder, have increasingly drawn antitrust scrutiny. Practices in this area that have attracted antitrust attention include the following:

1. Patent Thickets

“Patent thicketing” is the practice of building dense networks of overlapping patents around a core product or technology. Antitrust concerns arise when a company develops a large, overlapping portfolio of patents to hinder competitors from entering the market. The risk is especially acute where potential entrants must negotiate licenses for dozens or even hundreds of patents, including patents with minimal commercial value.

For example, Intel in 2019 alleged that Fortress Investment Group acquired a “massive … portfolio of patents” for the purpose of seeking “supracompetitive royalties” unrelated to the value (if any) of the controlled patents through aggressive patent litigation. [15] The district court described Intel’s antitrust allegations as “compelling,” saying “[i]t is not hard to imagine that a person or entity could accrue market power by obtaining a dominant share of substitute patents and threaten a barrage approach to litigation, allowing legally unjustified leverage over licensees.” [16] Ultimately, however, the court dismissed Intel’s complaint because it failed to provide specific details about, for example, whether Fortress’s patents were “key” in the relevant market and whether there were any available substitute patents. Intel also failed to show that Fortress actually engaged in “serial” litigation. [17]

To limit the risk that one’s accumulated portfolio could be considered a “patent thicket,” a portfolio manager should document efforts showing that the portfolio is being maintained to support identifiable products, platforms, or technical roadmaps, not to create licensing drag. If a portfolio grows large, internal materials should reflect how groups of assets map to actual product lines or R&D programs, and license terms should continue to track recognizable commercial benchmarks to avoid being framed as a mechanism for volume-based exclusion.

2. Evergreening/Product Hopping 

“Evergreening” refers to the practice of obtaining new patents for secondary features of a product to extend its exclusivity after the original patent expires, while “product hopping” involves a company switching customers to a new, reformulated version of the product with a later patent, sometimes stopping production of the older product altogether. Similar to patent thicketing, evergreening and product hopping can trigger antitrust concerns when the primary purpose appears to be deterring potential competitors entering the market, rather than providing a genuinely superior or meaningfully differentiated alternative to customers. [18] For example, in 2019, the FTC filed a lawsuit and proposed settlement against drug manufacturers for “coerc[ing]” patients to switch from a tablet version of a branded drug to a recently introduced “film” version through actions including allegedly false safety improvement claims and “significantly increasing” the price of the tablets. [19] Under the settlement, the manufacturers committed to (1) paying approximately $50 million in equitable monetary relief; [20] (2) supplying the FTC with reasons for launching a revised version of an existing product; and (3) preserving the availability of the original product for a set period when generic manufacturers apply for approval of competing versions of the branded drug. [21]

To mitigate risk, companies should document the basis for concluding that any proposed reformulation or follow-on patent reflects a genuine product improvement, as opposed to a mere strategy to delay generic entry or restrict consumer choice.

3. Privateering

“Privateering” refers to the practice of an operating company deploying proxies (referred to as non-practicing entities (“NPEs”) or patent assertion entities (“PAEs”), or pejoratively as “patent trolls”) that do not make or sell products covered by the patents but instead assert patents on its behalf. This approach enables the operating company to monetize its intellectual property without being directly exposed to the costs and risks of litigation. However, it also carries the risk of being viewed as a form of concerted exclusionary conduct, thus attracting antitrust scrutiny—even without proof of monopoly power.

In recent cases, private plaintiffs have alleged that agreements with NPEs and PAEs create anticompetitive conditions by incentivizing those entities to pursue meritless patent litigation. [22] Arrangements that induce an NPE or PAE to pursue patent litigation regardless of the merits of the claim, for example, may be considered evidence that the NPE or PAE is being utilized primarily as a means for excluding competitors from the market through harassing patent litigation. To reduce this risk, an IP owner that uses NPEs or PAEs as assertion vehicles should document how the use of these entities allow the original patent holder, for example, to keep its internal resources focused on research and product development while still commercializing its IP, and how the relationship with the entity is structured to avoid incentivizing the pursuit of lawsuits unless there is a reasonable, good-faith basis for the suit.

4. Walker Process Patent Fraud

Various patent statutes and regulations impose a duty of candor and good faith dealing when making patent applications before the U.S. Patent and Trademark Office (“PTO”). [23] The failure to run a transparent, defensible prosecution process also poses antitrust concerns. Specifically, under Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., the exclusion of a competitor from a relevant market by enforcing “a patent procured by fraud on the Patent Office” may violate the antitrust laws. [24] The fraud can be a “fraudulent misrepresentation or a fraudulent omission.” [25]

Because Walker Process liability turns on issues of candor and material informational integrity in the prosecution record, companies should take particular care to maintain clean, defensible prosecution practices including disciplined disclosure procedures, rigorous internal recordkeeping, and avoiding any embellishment, overclaiming, or selective withholding in interactions with the PTO. The downstream stakes are significant: if the patent is later enforced against a competitor, any prosecution fraud can convert what would otherwise be an ordinary infringement enforcement into a potential treble-damages antitrust claim.

5. IP Acquisitions (Including  Exclusive Licenses) 

The antitrust laws prohibit companies from acquiring “assets,” including IP rights, where the result would “substantially . . . lessen competition” or “tend to create a monopoly.” [26] Under Supreme Court precedent, transactions leading the combined firm to hold at least 30% share in the relevant market are presumed to be anticompetitive, although the presumption is rebuttable. [27] Where the acquisition is found anticompetitive, the buyer may be required to accept burdensome “behavioral” conditions restricting how it may license, transfer, or exploit that IP right, or even to divest the IP right to an approved third party. [28] Because those divestitures often occur under “fire sale” conditions, the resulting sale price may be significantly below what the IP right might otherwise fetch.

Furthermore, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), acquisitions (either of IP assets directly, or of a corporation or non-corporate entity owning those assets) meeting certain thresholds [29] require the involved companies to file notifications with the FTC and DOJ and observe a minimum 30-day waiting period before closing. [30] For HSR purposes, a reportable “asset” acquisition can involve certain types of exclusive trademark licenses and patent licenses. For patent licenses, even partial, “field-of-use” exclusive licenses limited to particular geographies or applications may be HSR-reportable. [31] Furthermore, the license, grant, assignment or other transfer of certain pharmaceutical patent rights are potentially HSR-reportable if they transfer all “commercially significant rights,” defined as “the exclusive rights to a patent that allow only the recipient of the exclusive patent rights to use the patent in a particular therapeutic area (or specific indication within a therapeutic area).” [32] These rules are highly technical, and therefore require the assistance of experienced HSR counsel.

In particular, where a company is considering acquiring or divesting IP rights (whether through a license with some measure of exclusivity, or a grant, transfer, assignment, or other mechanism) with a potential transaction “value” of at least $126.4 million in 2025 (including the value of any potential royalty or milestone payments, which may be very difficult to determine), it should consult experienced HSR counsel about whether or not the transaction would trigger an obligation to file HSR and observe the mandatory waiting period, and to assess whether the authorities may seek to block the transaction or impose other remedies because of competitive concerns.

B. IP Licensing

Licensing (i.e., the grant of a defined bundle of intellectual property rights from a rights-holder to another party) is a particularly active area drawing antitrust scrutiny. Specific licensing practices that have drawn antitrust attention include the following:

1. Patent Pools

“Patent pools” are joint licensing arrangements whereby two or more intellectual property licensors “pool” their rights and offer them in a package to third parties. By creating a single entity (the pool) that grants a single license to all the pooled patents, a patent pool can reduce transactional costs through one-stop shopping for a license and avoiding the need to negotiate with each patentee who might hold blocking rights. However, patent pooling arrangements can raise risks of collusion, price fixing, exclusion of non-members, and conditioned licensing.

In a 2020 business review letter, the DOJ found that a proposed patent pool related to 5G wireless standards in automobiles was unlikely to raise competitive concerns, in part because the pool (1) excluded “non-essential” patents; (2) required independent patent experts to evaluate patent claims according to standard procedures; (3) allowed for independent licensing out of the pool; and (4) implemented measures to protect against participants from sharing competitively sensitive, confidential business information. [33] Proposed patent pools should consider similar measures to mitigate competitive concerns.

2. Exclusive Dealing 

An IP license that prevents or restrains a licensee from licensing, selling, distributing, or using competing technologies is said to be engaging in “exclusive dealing.” Such exclusivity does not have to be achieved through explicit deal terms; a license may be considered “de facto” exclusive dealing if other provisions such as royalty terms and duration, or the agreement’s effect in the real world, show that it functionally acts as an exclusive dealing arrangement. [34] An exclusive dealing arrangement may “anticompetitively foreclose access to, or increase competitors’ costs of obtaining, important inputs, or facilitate coordination to raise price or reduce output.” [35] Importantly, courts typically require a showing that the arrangement would “substantially foreclose” competition in the relevant market by a margin of 30 to 40%. [36] Furthermore, exclusivity agreements are generally considered to be lawful if they can be terminated within a year. [37]

3. Package Licenses and Tying  Arrangements

“Tying” arrangements are licenses that condition the grant of rights to the licensee on the performance of a defined condition, particularly requirements either to take a license to other patents (typically called a “package” license) or to purchase other products or services. The primary antitrust concern with conditioned licensing is the leveraging of market power in one market to the detriment of competition in other markets that lie beyond the legitimate scope of the licensor’s rights. [38]

To mitigate risk, consider whether it is feasible to provide the tied product, service, or license separately rather than only as part of the tie. Also consider whether it is possible to define objective technical specifications that alternative third-party products or services must satisfy if used in place of the tied product or service.

4. Cross-Licensing

“Cross-licensing” is when two or more intellectual property holders grant each other reciprocal rights to use some or all of their respective patents. Cross-licensing is especially useful as it mitigates risk of litigation from using each other’s patented technology, clears blocking positions, and reduces transaction costs by simplifying the negotiation process. [39]

Cross-licenses, however, risk being seen as an anticompetitive exclusionary tool, particularly when used to exclusively license substitute technologies between existing rivals where no other substitute technologies exist. In such a situation, the cross-license might eliminate any potential for a third-party licensee to access those technologies and more directly compete. By contrast, a non-exclusive cross-license that simply clears blocking positions between the parties is much less likely to present material antitrust issues.

5. Grantbacks

When using licensed technology, licensees might develop improvements that could be protected under IP laws. To manage this, licensors often use “grantback” clauses, thereby licensing, assigning, or otherwise granting IP rights to practice those improvements back to the licensor. Non-exclusive grantbacks are generally seen as procompetitive because they preserve licensees’ incentives to innovate and leave it open for other competitors to obtain their own license for the improvements. [40]

Conversely, exclusive grantbacks, which restrict the use of improvements to only the licensor, can raise antitrust concerns, such as by reducing licensees’ incentives to engage in R&D because they cannot license the technology to others. Exclusive grantbacks might also allow the licensor to prolong its ability to exclude competitors from the market. These concerns may be mitigated if, for example, the licensee is permitted to practice the patented improvement on a royalty-free basis. [41]

V. IP Licensing “Safety Zones”

In the context of IP licensing, the DO and FTC have identified certain “safety zones.” If an IP licensing arrangement falls within these zones, the arrangement typically will not be challenged by these agencies unless “extraordinary circumstances” exist.” [42] Under this guidance, assuming that the purported restraint is not “facially anticompetitive” (i.e., not an agreement to price-fix, rig bids, or allocate customers or markets), then the agencies will not challenge the restraint as long as:

• If the relevant market is a goods market, “the licensor and its licensees collectively account for no more than twenty percent of” the market; [43]
• If the relevant market is a technology market, there are, in addition to the technologies controlled by the license agreement parties, “four or more independently controlled technologies” that are “substitutable” at a “comparable cost to the user”; [44] or
• If the relevant market is an R&D market, there are, in addition to the license agreement parties, “four or more  independently controlled entities” with “the required specialized assets or characteristics and the incentive to engage in research and development that is a close substitute” to the R&D engaged by the license agreement parties. [45] 
   

V. Takeaways

In managing intellectual property portfolios, companies must balance the benefits of innovation and competitive advantage against potential antitrust risks. To effectively navigate these challenges, the following key points should be kept in mind:

• Keep an eye on market position: Regularly assess your company’s standing in the market to ensure it does not inadvertently gain a dominant position that could attract antitrust scrutiny.

• Document genuine value of any inventions subject to patent: Maintain thorough records demonstrating the true innovation and value of patented inventions to justify their necessity and market impact.

• Document procompetitive rationales for portfolio management strategies: Clearly articulate and record the procompetitive reasons behind your IP strategies to help defend against possible antitrust challenges.

• Vet strategies with antitrust counsel: Consult with antitrust experts to evaluate and adjust your IP strategies, ensuring they align with legal standards and minimize potential liabilities.

This article was originally published in the CPI Antitrust Chronicle, November 2025, and is reposted here with permission from Competition Policy International.

1. Kate Gehl is an antitrust litigation partner in the Milwaukee office of Foley & Lardner, LLP. Richard Lee is a senior antitrust associate in Foley’s Washington D.C. office. Ellen Matheson and Katherine (Kitty) Young are litigation associates in Foley’s Milwaukee and Washington D.C. offices, respectively.
2. This article does not address conduct or transactions involving standard-setting organizations (“SSOs”), standard-essential patents (“SEPs”), or commitments to license such patents on fair, reasonable, and non-discriminatory (“FRAND”) terms. The antitrust issues that arise in these other contexts are sufficiently distinct and complex that they merit separate treatment.
3. See e.g. Antitrust Modernization Comm’n, Report and Recommendations 37 (2007) (noting the “influence of economic learning about the competitive benefits of intellectual property and the potential efficiencies of intellectual property licensing,” and how enforcers therefore “now assess whether particular intellectual property in fact confers market power and consider how business arrangements involving intellectual property can benefit consumer welfare”).
4. Acad. of Allergy & Asthma in Primary Care v. Amerigroup Tenn., Inc., No. 24-5153, 2025 U.S. App. LEXIS 26465, at *20 (6th Cir. Oct. 10, 2025) (stating that the antitrust laws “represent a ‘consumer welfare prescription’ from Congress).
5. See e.g. Sanderson v. Culligan Int’l Co., 415 F.3d 620, 622 (7th Cir. 2005) (requiring claim of anti-competitive coordination violating the rule of reason to include allegation that defendant possessed sufficient “market power”). However, certain types of agreements between competitors (price-fixing, bid-rigging, customer and territorial allocations) are considered “per se” violations of the antitrust laws, meaning that no proof of market power in a relevant market is required. Broad. Music, Inc. v. CBS, Inc. 441 U.S. 1, 7-8 (1979).
6. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 27 n.46 (1984).
7. Ill. Tool Works, Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45 (2006); see also U.S. Dep’t of Justice and Fed. Trade Comm’n, Antitrust Guidelines for the Licensing of Intellectual Property (“IP Licensing Guidelines”) (Jan. 12, 2017), § 2.2 (stating that FTC and DOJ “will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner”).
8. See e.g. Jefferson Parish, 466 U.S. at 26 (finding that 30 percent market share was “not necessarily probative of significant market power” in the case).
9. United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 391 (1956).

10. See e.g. United States v. Aluminum Co. of Am., 148 F.2d 416, 424 (2d Cir. 1945) (noting that over 90% market share “is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three per cent is not”); see also Blue Cross & Blue Shield United of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1411 (7th Cir. 1995) (“50 percent is below any accepted benchmark for inferring monopoly power from market share”).
11. U.S. Dep’t of Justice and Fed. Trade Comm’n, Merger Guidelines (Dec. 18, 2023), § 4.3. As a rule of thumb, if a 5-10 percent price increase would cause a significant number of customers to switch to a different product, that substitute product likely should be included in the relevant market. Ibid. § 4.3.B.
12. IP Licensing Guidelines § 3.2.1.
13. Ibid. § 3.2.2.
14. Ibid. § 3.2.3.

15. Intel Corp. v. Seven Networks, LLC, 562 F. Supp. 3d 454, 458-59 (N.D. Cal. 2021).
16. Ibid. at 464.
17. Ibid. at 465-67.
18. See Fed. Trade Comm’n, Listening Session: Formulary and Benefit Practices and Regulatory Abuse Impacting Drug Competition 29-32, 34-35, https://www.ftc.gov/system/files/ftc_gov/pdf/first_drug-price_listening_session_transcript.pdf (July 24, 2025) (describing recent pharma product hopping cases and proposed legislative solutions).
19. Complaint, FTC v. Reckitt Benckiser Grp PLC, 1:19CV00028, Dkt. 1, ¶ 24-26 (W.D. Va. July 11, 2019).
20. The FTC based its authority to seek equitable monetary relief under Section 13(b) of the FTC Act. In 2021, the Supreme Court unanimously held that the FTC lacked any such authority. AMG Capital Mgmt., LLC v. FTC, 593 U.S. 67 (2021).

21. See e.g. Stipulated Order for Permanent Injunction and Equitable Monetary Relief, FTC v. Reckitt Benckiser Grp PLC, 1:19CV00028, Dkt. 3 (W.D. Va. July 12, 2019).
22. See Intel Corp., 562 F. Supp. at 458.
23. See e.g. 37 C.F.R §§ 1.56.
24. Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174 (1965).
25. Hydril Co. LP v. Grant Prideco LP, 474 F.3d 1344, 1349 (Fed. Cir. 2007) (citation omitted).
26. 15 U.S.C. § 18.
27. United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 364-65 (1963).
28. See e.g. Proposed Final Judgment, United States v. Hewlett Packard Enter. Co., 5:25-CV-00951-PCP, Dkt. 217-1 (N.D. Cal. June 27, 2025) (requiring merging parties, as a condition to DOJ withdrawing challenge to proposed merger, to divest one business line including “specific intellectual property owned, licensed, or sublicensed,” and to provide perpetual, worldwide, non-exclusive license for certain WLAN system software IP to at least one independent licensee).
29. For an asset transaction to be HSR-reportable, the asset’s “value” (the greater of “acquisition price” or “fair market value,” 16 C.F.R. § 801.10(b)) must, at minimum, be greater than the “size of transaction” (“SOT”) threshold. The SOT threshold is nominally set at $50 million, and adjusted annually to track changes in Gross National Product. 18 U.S.C. § 18a(a)(2). For 2025, the adjusted threshold is $126.4 million. Certain other requirements and exemptions, such as meeting specific “size of party” (“SOP”) thresholds, may apply.
30. 15 U.S.C. § 18a(a).
31. ABA, Premerger Notification Manual, Int. No. 26 (5th ed. 2015).
32. 16 C.F.R. §§ 801.1(o)-(q), 801.2(g).
33. See e.g. U.S. Dep’t of Just., Response to the Avanci LLC’s Request for a Business Review Letter (July 28, 2020), https://www.justice.gov/atr/page/file/1298626/dl?inline=  (finding Avanci’s proposed joint patent-licensing pool unlikely to harm competition).
34. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012).
35. IP Licensing Guidelines § 4.1.2.
36. See e.g. McWane, Inc. v. Fed. Trade Comm’n, 783 F.3d 814, 837 (11th Cir. 2015)
37. See e.g. Roland Mach. Co. v. Dresser Indus, Inc., 749 F.2d 380, 395 (7th Cir. 1984) (“Exclusive-dealing contracts terminable in less than a year are presumptively lawful . . . .”).
38. IP Licensing Guidelines § 5.3.
39. Ibid. § 5.5.
40. Ibid. § 5.6.
41. See e.g. Sante Fe-Pomeroy, Inc. v. P & Z Co., 569 F.2d 1084, 1098-1102 (9th Cir. 1976) (finding that the requirement for licensees to give licensors the first right to patent any improvements had no “restrictive or ‘chilling’ effect” on licensees’ innovation incentives because provision was limited in time and subject matter to the duration of the underlying contract, licensees were permitted to use alternative methods to the licensed technology, and licensees were allowed to use improvements without paying additional royalties).