Description
This essential guide vital new changes by the European Commission to the law governing the enforceability of intellectual property licences in Europe. Agreements which contain the grant of a licence by one party to another of intellectual property rights are subject to European competition (anti-trust) laws. In particular, many agreements containing licences of patent rights and rights in confidential information and technical know-how are caught by Article 81(1) of the EC Treaty, which prohibits agreements between undertakings which prevent, restrict or distort competition in the Common Market. However, because licences of intellectual property rights usually facilitate the transfer of technology from one undertaking to another, and the licensor and licensee will often operate at different levels of the market, many licences of intellectual property rights may benefit from an automatic exemption under Article 81(3) of the EC Treaty. On 1 May 2004, this exemption is being radically overhauled, as part of the European Commission’s drive to modernise European competition law. This book examines the changes in that legislation.
- The legislation is completely new and there is therefore no existing book on the market
- The change in the law will require an entirely new approach to the drafting of IP licences
- The change in the law will require existing IP licences to be re-examined and possibly re-negotiated
Chapter
1 Exploitation of intellectual property rights and the impact of competition law
Intellectual property rights and licensing
Introduction to the EC competition rules
Article 81(1) of the EC Treaty
Article 81(3) of the EC Treaty
Article 82 of the EC Treaty
The impact of EC competition law on IP licences and technology transfer agreements
2 The old technology transfer block exemption regulation and the need for reform
What intellectual property licences were covered?
What types of agreement were exempt?
The grey list and the opposition procedure
The European Commission’s evaluation of Regulation 240/96
3 An economics-based approach to the analysis of agreements under Article 81 and the new-style block exemptions
Definition of the relevant market
The Commission Notice on agreements of minor importance
The new-style block exemptions: vertical agreements
Research and development, specialisation and horizontal cooperation agreements
The need for consistency in the treatment of IP licences and technology transfer agreements
Possible negative economic effects of technology transfer agreements
Positive economic effects of technology transfer agreements
4 The technology transfer block exemption: the safe harbour
Introduction to the technology transfer block exemption
Assessment of market power
The distinction between competitors and non-competitors
One-way or two-way blocking positions
The market share thresholds
5 The technology transfer block exemption: hardcore and excluded restrictions
Hardcore restrictions of competition
The hardcore list for agreements between competing undertakings
Exceptions to the hardcore list for agreements between competing undertakings
The hardcore list for agreements between non-competing undertakings
Passive sales bans in agreements between non-competing undertakings
The hardcore lists: ex ante approach to be applied
6 Analysis outside the block exemption: Article 81(3)
Introduction to self-assessment
The general framework for applying Article 81(1)
The counterfactual to be used when assessing licence agreements for their effect on competition
The general framework for analysing the positive effects of licence agreements under Article 81(3)
The Commission’s Notice on the application of Article 81(3)
The first condition of Article 81(3): economic efficiencies
The second, third and fourth conditions of Article 81(3)
Various restraints and agreements examined under Article 81(3)
7 Challenges to licence agreements under the modernised regime
Modernisation and decentralisation of enforcement of the competition rules – the litigation risks
Uniformity of application of the competition rules
Proceedings in the national courts
Cooperation between the Commission and the national courts
Complaints to the Commission and the NCAs
The operation of the European Competition Network
The power of withdrawal in individual cases of the benefit of the TTBER by the Commission and the NCAs
Disapplication of the TTBER
APPENDIX 1 Commission Regulation (EC) No. 772/2004
On the Application of Article 81(3) of the Treaty to Categories of Technology Transfer Agreements
APPENDIX 2 Commission Notice 2004/C101/02
Guidelines on the Application of Article 81 of the EC Treaty to Technology Transfer Agreements
1 Exploitation of intellectual property rights and the impact of competition law
2 The old technology transfer block exemption regulation and the need for reform
3 An economics-based approach to the analysis of agreements under Article 81 and the new-style block exemptions
4 The technology transfer block exemption: the safe harbour
5 The technology transfer block exemption: hardcore and excluded restrictions
6 Analysis outside the block exemption: Article 81(3)
7 Challenges to licence agreements under the modernised regime
APPENDIX 1 Commission Regulation (EC) No. 772/2004
APPENDIX 2 Commission Notice 2004/C101/02
Intellectual Property Licences and Technology Transfer
：A Practical Guide to the New European Licensing Regime
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