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Intellectual Property Licences and Technology Transfer
a Practical Guide To The New European Licensing Regime
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 marketThe change in the law will require an entirely new approach to the drafting of IP licencesThe change in the law will require existing IP licences to be re-examined and possibly re-negotiated.
Cover; Intellectual Property Licences and Technology Transfer: A practical guide to the new European licensing regime; Copyright; Dedication; Contents; Preface; Tables of references to EU legislation and other documents; References to the Technology Transfer Block Exemption Regulation and the Guidelines; Other Block Exemptions and Commission Notices; The Modernisation Package; About the author; 1 Exploitation of intellectual property rights and the impact of competition law; Intellectual property rights and licensing; Introduction to the EC competition rules; Some terminology.
Article 81(1) of the EC TreatyArticle 81(3) of the EC Treaty; Modernisation; Article 82 of the EC Treaty; The impact of EC competition law on IP licences and technology transfer agreements; Notes; 2 The old technology transfer block exemption regulation and the need for reform; Historical perspective; What intellectual property licences were covered?; What types of agreement were exempt?; The white list; The black list; The grey list and the opposition procedure; The US approach; The European Commission's evaluation of Regulation 240/96; Notes.
3 An economics-based approach to the analysis of agreements under Article 81 and the new-style block exemptionsThe beginnings of reform; 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; Notes.
4 The technology transfer block exemption: the safe harbourIntroduction to the technology transfer block exemption; What is included?; What is excluded?; Assessment of market power; Technology markets; The distinction between competitors and non-competitors; One-way or two-way blocking positions; The market share thresholds; Notes; 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 undertakingsPassive sales bans in agreements between non-competing undertakings; The hardcore lists: ex ante approach to be applied; Excluded restrictions; The rule of severability; Notes; 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).
Intellectual property (International law)
Propriété intellectuelle (Droit international)
Administrative Law & Regulatory Practice