Intellectual property rights Flashcards
IP rights and competition law
IP-rights cover –> patents, designs, copyrights, trademarks and analogous rights (also know-how, as defined under TTBER)
IP-rights are created under the national laws of the EU member states
- Confer an exclusive right to behave in a certain manner
- Competition law seaks to keep markets open
- A trade-off between providing incentive for innovation and giving free access to markets
License of IP rights under art. 101
Licensing-agreements are generally recognised as a pro-competitive
- Spreads access to the technology – allows other actors to benefit (and profit) from the technology
- Assessment under competition law largely has to do with the restrictions imposed on licensees – are they excessive?
Different terms and conditions
- Territorial exclusivity –> 1) Sole license, no other licensees except rights-holder, 2) Exclusive license, absolute protection, 3) export bans, no selling into the territory by other licensees
- Duration –> Matches the IP-right, may continue after expiration of IP-right
- No-challenge clause –> No challenging of validity of the IP-right
- Improvements –> Grant back know-how
Technology Transfer Block Exemption
Definitions
- Transfer of technology rights –> licensing agreement between two undertakings for production
- Know-how –> Identified, sustantial and secret
- Patents
- Software copyrights
Block exemption
- If not prohibited, then permitted
- Only applies to bilatereal agreements –> only between two undertakings
- Duration –> Exemption lasts as long as the IP-rights to the licensed technology has not expired
Market shares
- Horizontal –> Below 20% (competing on either technology or product market)
- Vertical –> Below 30%
Hard-core restrictions
Horizontal agreements
- Prices –> Restrictions on the parties prices to third parties
- Output –> restrictions, but not in relation to output restrictions for contract products in non-reciprocal agreement
- Market or customer sharing –> remember exceptions
- Ability of the licensee to exploit its own technology or from carrying out R&D
Vertical agreements
- Price –> Fixed or minimum
- Market or customer sharing –> Not allowed to restrict passive sale (exclusive territory, only own use, unauthorised distributors)
Excluded restrictions
- Exclusive grant-back clauses
- No-challenge clauses
IP-rights and art. 102
The mere ownership of an IP-right does not consitute abuse
- Has to look at the exercise of the right
Refusal to supply license
- Balance between protecting the economic freedom of the owner and protection of competition
- The latter prevails where refusal prevents development of a secondary market to the detriment of consumers
