A more recent version of these Ip Competition Law notes – written by Cambridge And Oxilp And College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Commercial and IP Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Elective: Commercial & IP Law
Intellectual Property Rights IP and Competition Law The transfer of IP rights
? IP rights can be traded through asset sale / share sale
? Buyer's objective = acquire the rights to use all IPR necessary to conduct the business in the same manner as the seller prior to the sale. The Process of Technology Transfer
? Due diligence: enquiries, searches - identify potential problem areas.
? Evaluation: what is the significance of the IPRs to the business
? Drafting of transfer agreement: define the IPRs being sold and agree the IP-specific warranties and special provisions such as licenses.
? Post completion matters: ensure that the buyer is properly recorded as the proprietor of IPRs assigned to him. Competition Issues
? IP rights restrict trade and competition [e.g. Patent - stops someone making / selling the machine]
? Mostly concerning: Patents; Copyright and Trademarks
? Terms of a IP license agreements can restrict trade also e.g. give licensee exclusive territory or stop licensee exporting from the territory
? EU balancing act = provide rewards for creativity but stop IP rights harming competition within the single market.
? Treaty on the Functioning of the European Union; Art.101 Outlaws: a) Agreement / decision between undertakings b) Which may have an affect on trade between MS; and c) Which have as their object or effect the prevention, restriction or distortion of competition within the EU
? Must have appreciable effect!
? A license agreement OR simply the bringing of proceedings to stop infringement of an IP right may infringe Article 101.
? Potential problems - causing "affect on trade" [breaching S.101 - unduly restrictive of competition]
Territorial problems "X agrees to not appoint any licensees in France other than Y" Price "Y will sell the machines at a price which X will determine"
? Exception Art 101(3): The provisions of paragraph 1 may, however, be declared inapplicable in the case of: Any agreement, which contributes to improving the production or distribution of goods or to promoting technical or economic progress.
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