Collaborations Guidelines RFI Notice

The American Antitrust Institute (AAI) supports the issuance of revised guidelines for business collaborations, urging the agencies to preserve key themes of the 2000 Guidelines while updating them with modern economic and legal scholarship. They recommend specific drafting principles, such as using plain language, eliminating "safety zones," and clarifying the application of the rule of reason and the ancillary restraints doctrine.

TechFreedom, a nonprofit technology policy think tank, supports the revision of the Collaboration Guidelines but argues they must be more specific regarding burden-shifting responsibilities. They advocate for a three-step rule of reason framework based on recent Supreme Court precedent, where the burden of identifying less restrictive alternatives rests with the government rather than the collaborating parties.

The Connected Health Initiative (CHI), a multistakeholder policy and legal advocacy coalition, supports the DOJ and FTC's efforts to provide clear and predictable guidance on collaborations among competitors. They recommend building on the 2000 Collaboration Guidelines, preserving their original scope, and specifically highlighting the procompetitive nature of data sharing, AI development, and labor collaborations in the healthcare sector.

TechFreedom, a nonprofit technology policy think tank, supports the revision of the Collaboration Guidelines but argues they must be more clearly aligned with recent Supreme Court precedent. They specifically advocate for a three-step burden-shifting framework where the burden of identifying less restrictive alternatives rests with the government, rather than the collaborating parties.

ASNEAA, a non-profit organization focused on BIPOC communities and human rights, supports the development of antitrust guidelines to address the risks of collusion and anticompetitive behavior in AI and technology. They argue that current business collaborations lack sufficient guardrails to prevent the exploitation of personal data, surveillance pricing, and the marginalization of minority communities.

The Innovation Alliance, a coalition of R&D-based technology companies, supports the development of clear guidance that reinforces procedural safeguards for standards development organizations (SDOs) to ensure they remain procompetitive. They urge the Agencies to avoid providing affirmative guidance or safe-harbor treatment for licensing negotiation groups (LNGs), arguing that such groups may function as unlawful buyer cartels that suppress the value of patented technology.

The Association for Competitive Technology (ACT), Engine, High Tech Inventors Alliance (HTIA), and Save Our Standards (SOS) support the DOJ and FTC's effort to provide clear and predictable guidance on business collaborations. However, they specifically recommend that the agencies maintain the original scope of the guidelines and avoid extending them to include standard setting and intellectual property licensing matters.

James Harlan, an independent intellectual property practitioner and managing member of Harlan Strategies, LLC, argues that the agencies should issue new guidance that affirms voluntary standards development and FRAND licensing as presumptively pro-competitive. He emphasizes that the current lack of guidance creates uncertainty and calls for a framework grounded in the empirical record, which shows that implementer holdout is a significant issue and that standards collaboration drives innovation.

Ericsson, a global information and communication technology company, opposes the creation of an antitrust safe harbor or guidance that would shield Licensing Negotiation Groups (LNGs) from scrutiny. The company argues that LNGs are likely anticompetitive, facilitate collective holdouts, and lack proven procompetitive justifications compared to existing models like patent pools.

The National Association of Manufacturers (NAM) supports the development of updated guidance on collaborations among competitors to provide industry certainty and foster pro-competitive agreements. They specifically advocate for maintaining existing "safe harbors" for R&D, trade associations, and technical interoperability, while requesting new guidance on algorithmic pricing and AI security risk sharing.