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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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