Structuring IP Arrangements That Survive Antitrust Review: A Practitioner's Guide to Licensing Restraints, Pools, and Enforcement Conduct
By Casey Scott McKay ·
This guide is the operational companion to the doctrine, and it is organised as work rather than as law. It sets out how to classify a proposed restraint, how to assess market power honestly rather than by assumption, and how to structure the terms that carry genuine risk - tying and package licensing, post-expiration royalties, grantbacks, non-challenge covenants, and cross-licences between competitors. It then covers building and joining a patent pool to the governance conditions that make it defensible, participating in standards processes, screening acquisitions and exclusive licences for reportability, and running an enforcement programme that does not generate a sham-litigation record. It closes with a compliance programme, an escalation rule, and the documents to keep.
IP and Technology > General IP | Guide | Published 10 October 2024 - Updated 6 October 2025 | Casey Scott McKay - marksy.us
Summary. This guide is the operational companion to the doctrine, and it is organised as work rather than as law. It sets out how to classify a proposed restraint, how to assess market power honestly rather than by assumption, and how to structure the terms that carry genuine risk — tying and package licensing, post-expiration royalties, grantbacks, non-challenge covenants, and cross-licences between competitors. It then covers building and joining a patent pool to the governance conditions that make it defensible, participating in standards processes, screening acquisitions and exclusive licences for reportability, and running an enforcement programme that does not generate a sham-litigation record. It closes with a compliance programme, an escalation rule, and the documents to keep.
Keywords: antitrust review of licensing · restraint classification · market power assessment · tying analysis · package licensing · post-expiration royalty structuring · patent pool governance · essentiality review · grantback drafting · non-challenge clauses · cross-license risk · no-poach exposure · HSR reportability · standards disclosure · demand letter discipline · sham litigation defence · Walker Process exposure · compliance programme · rule of reason justification · less restrictive alternative
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