Synopses & Reviews
The Author: partner at McDermott, Will & Emery. Summary: examines new changes by the European Commission (Ee 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 (IPRs) 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 IPRs 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 IPRs may benefit from an automatic exemption under Article 81(3) of the EC Treaty. Contents: Introduction - IPRs; exploitation of IPRs (licences and other agreements); the impact of competition law; Article 81(1) of the EC Treaty; Article 81(3) of the EC Treaty (individual exemption; block exemption; Regulation (Ee No. 240/96) Modernisation - the Modernisation Regulation (Ee No. 1/2003 (abolition of the notification procedure); an economics based approach; market power (product markets; geographic markets; methodologies) The new Technology Transfer Block Exemption Regulation - competitors or non-competitors (flow diagram); technology markets; agreements between non-competitors; agreements between competitors; transitional arrangements Hardcore restrictions - improvements (grant back of exclusive licence; assignment); no-challengeclauses; limiting of output; limiting of licensee's ability to exploit its own technology Article 81(3) Challenging the legality of licence agreements - in the Courts; complaints to the European Commission Conclusions - risk assessment
Review
"…the work is lucid and helpful." World Competition
Synopsis
This essential guide explains 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 May 1, 2004, this exemption is being radically overhauled, as part of the European Commissions drive to modernize European competition law. This book examines the changes in that legislation.
About the Author
Duncan Curley is a partner in McDermott, Will and Emerys European Intellectual Property Practice Group. He regularly advises clients on intellectual property and licensing, and he has a particular interest in the interface between intellectual property rights and EC competition law. He has published widely in legal journals and national newspapers.
Table of Contents
-Exploitation of intellectual property rights and the impact of competition law
-The old technology transfer block exemption regulation and the need for reform
-An economics-based approach to the analysis of agreements under Article 81 and the new-style block exemptions
-The technology transfer block exemption: the safe harbour
-The technology transfer block exemption: hardcore and excluded restrictions
-Analysis outside the block exemption: Article 81(3)
-Challenges to licence agreements under the modernised regime
-Conclusion
-Appendices