Market Share Thresholds in Licensing Agreements - Punishing Success?
(2005)Department of Law
- Abstract
- The EU has, in the Lisbon strategy, set an objective to become the most competitive economy in the world by 2010. It will, in order to achieve this objective, be necessary to develop and rapidly spread new technologies on the common market. National IP laws provide the legislative framework for the existence and scope of an intellectual property right while EC competition law concerns the exercise of the same. Licensing is a way to distribute intellectual property rights and generally has effects that are pro-competitive and beneficial for consumer welfare. TTBER Recital 5. However, while they do have favourable effects, licensing agreements may also prove restrictive of competition. Competition legislation of the EC, which serves to... (More)
- The EU has, in the Lisbon strategy, set an objective to become the most competitive economy in the world by 2010. It will, in order to achieve this objective, be necessary to develop and rapidly spread new technologies on the common market. National IP laws provide the legislative framework for the existence and scope of an intellectual property right while EC competition law concerns the exercise of the same. Licensing is a way to distribute intellectual property rights and generally has effects that are pro-competitive and beneficial for consumer welfare. TTBER Recital 5. However, while they do have favourable effects, licensing agreements may also prove restrictive of competition. Competition legislation of the EC, which serves to protect effective competition on the common market, therefore provides certain limitations for what is allowed and the regulatory framework to which undertakings must comply. EC Competition Law, Text, Cases and Materials. Alison Jones and Brenda Sufrin, p. 579. Both instruments share the same objectives of improving and protecting consumer welfare, but national IP laws often seem to take a more long-term approach as for what licensing can do for the market, while EC competition law rather regards the immediate effects on competition. A new block exemption for technology transfer agreements (the TTBER) entered into force in May, 2004 and introduced a new system in which market share thresholds determines whether an agreement comes within the scope of the block exemption safe harbour that exempts it from application of Article 81(1). Some welcome this system claiming it brings the EU approach closer to that of the US, which will result in facilitating global licensing. Many others are more unenthusiastic, especially so since the TTBER entered into force along with Regulation 1/2003, which decentralised the enforcement system of EC competition law. The new EU Technology Transfer regime-out of the straitjacket into the safe harbour? Marc Hansen and Omar Shah, p. 465-466. Critics say that the assessment of technology transfer agreements has been made more complex, perhaps too much so. They also claim the TTBER Guidelines that are to provide principles of interpretation, to be rather obscure and difficult to apply. The fact that fluctuations in market shares -a common feature on technology markets- are not regarded is one major point of criticism. Some claim that the system functions as a punishment for success. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1556981
- author
- Dufva, Emma
- supervisor
- organization
- year
- 2005
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Konkurrensrätt, EG-rätt
- language
- English
- id
- 1556981
- date added to LUP
- 2010-03-08 15:55:20
- date last changed
- 2010-03-08 15:55:20
@misc{1556981,
abstract = {{The EU has, in the Lisbon strategy, set an objective to become the most competitive economy in the world by 2010. It will, in order to achieve this objective, be necessary to develop and rapidly spread new technologies on the common market. National IP laws provide the legislative framework for the existence and scope of an intellectual property right while EC competition law concerns the exercise of the same. Licensing is a way to distribute intellectual property rights and generally has effects that are pro-competitive and beneficial for consumer welfare. TTBER Recital 5. However, while they do have favourable effects, licensing agreements may also prove restrictive of competition. Competition legislation of the EC, which serves to protect effective competition on the common market, therefore provides certain limitations for what is allowed and the regulatory framework to which undertakings must comply. EC Competition Law, Text, Cases and Materials. Alison Jones and Brenda Sufrin, p. 579. Both instruments share the same objectives of improving and protecting consumer welfare, but national IP laws often seem to take a more long-term approach as for what licensing can do for the market, while EC competition law rather regards the immediate effects on competition. A new block exemption for technology transfer agreements (the TTBER) entered into force in May, 2004 and introduced a new system in which market share thresholds determines whether an agreement comes within the scope of the block exemption safe harbour that exempts it from application of Article 81(1). Some welcome this system claiming it brings the EU approach closer to that of the US, which will result in facilitating global licensing. Many others are more unenthusiastic, especially so since the TTBER entered into force along with Regulation 1/2003, which decentralised the enforcement system of EC competition law. The new EU Technology Transfer regime-out of the straitjacket into the safe harbour? Marc Hansen and Omar Shah, p. 465-466. Critics say that the assessment of technology transfer agreements has been made more complex, perhaps too much so. They also claim the TTBER Guidelines that are to provide principles of interpretation, to be rather obscure and difficult to apply. The fact that fluctuations in market shares -a common feature on technology markets- are not regarded is one major point of criticism. Some claim that the system functions as a punishment for success.}},
author = {{Dufva, Emma}},
language = {{eng}},
note = {{Student Paper}},
title = {{Market Share Thresholds in Licensing Agreements - Punishing Success?}},
year = {{2005}},
}