Electrolux EU 0561 C Manual de usuario descargar pdf (Pagina 15)

Vol. 1, N° 2, Summer 1994 EC COMPETITION POLICY NEWSLETTER PAGE 15

have the effect of totally preventing trade between Member

states for the goods which are manufactured using the

licensed technology. The Commission and the European

Courts have consistently taken the view that parallel trade

in goods must be allowed to flow, and this may not be

excluded by exclusive IP licenses or distribution agreements.

Whilst licensees may be restricted from carrying out an

active sales policy outside their allotted territory, and even

under certain circumstances they may be prevented from

engaging in passive sales outside their own territory, they

may not be prevented from selling within their territory even

if they know that the purchaser intends to export the goods.

Indeed, agreements that provide for such absolute territorial

protection are not only prohibited, but also fined heavily.

This has been a long standing policy, and is not changed in

the draft Regulation. Licenses can benefit from the automatic

exemption if:

- they require the licensees to abstain from active sales

outside their own territories (i.e. they may be prohibited

from advertising or establishing a branch or sales depot

outside their territory)

- they require the licensees to abstain from passive sales (i.e.

they may be prohibited from delivering the product made

using the licensed technology outside their allotted territory

even in response to unsolicited orders) "for a period not

exceeding five years from the date when the product is first

put on the market within the common market by the licensor

or one of his licensees".

If, however, the licensee is in any way prevented from

selling to exporters in its own territory, the block exemption

will not apply.

The second underlying objective behind the Commission's

approach to IP licensing - the anti-trust objective - itself has

two basic goals. The first of these is an anti-cartel

objective - such licenses may not be used as a facilitating

device to enable market participants to coordinate their

activities, thus preventing effective competition between

them. This can result, for exemple, from cross-licenses

between existing competitors, operating in different areas of

the Community, having the effect of perpetuating their

exclusion from one another's territory. Such effects are only

likely to result where the market shares of the companies

concerned are of significant size, and/or the market is

oligopolistic in nature, or where there is a whole industry-

wide web of cross-licenses.

The second concern relates to market foreclosure. Assume

one or two manufacturers hold a very strong position on a

given technology/resultant product market. One of their

objectives may be to prevent new entry by smaller, feistier

rivals. One excellent way of doing this would be to tie up all

potential licensees/distributors in the territory with long-term,

exclusive licensing agreements containing non-compete

obligations effective both during and post term. Another

would be to ensure that the incumbent firm acquired an

exclusive license to any competing technology so that any

potential competitors would be hampered in their attempts to

enter the market. An excellent example of the latter situation

can be seen in the TetraPak case (Commission Decision

dated 26.7.88, OJ [1988] L 272/27). TetraPak, the Swiss

company, held a dominant position in the market for

machines for packaging liquids aseptically - such as U.H.T.

milk. A UK state-owned technology company, the British

Technology Group, patented an invention useful for such a

process. TetraPak acquired exclusive rights to use the

resulting patent, excluding its actual and potential

competitors from also acquiring rights to use the technology,

impeding their entry into or growth within the market. The

Commission adopted a decision requiring the termination of

the exclusivity provision.

Again, however, there can only be a concern that exclusive

IP licenses can have such effects when the partners to the

license have very high market shares, or have significant

market shares in oligopolistic markets. If not, there will be

many other competitors and/or potential licensees on the

market, or the effect of the license will not be to exclude

new entry or growth.

The new draft Regulation attempts to reflect these factors,

and to exclude from its scope agreements between

companies which, because of their market share and the

nature of the market in question, are at least potentially

likely to have the effects mentioned above. Thus, it proposes

that where:

- the licensee has a market share larger than 40 %, and,

- the 3 largest firms on the market have a combined market

share of 50 % or the 5 largest firms have a market share of

66%, and the licensee has a market share exceeding 10%,

the block exemption will not apply:

However, because the new draft excludes agreements

between companies meeting these criteria, it is no longer

necessary to take such a strict approach regarding the clauses

that may be included in exclusive IP licensing agreements.

In the existing Regulation - which applied irrespective of

market shares and industry concentration levels - it was

necessary to have a long list of black (or prohibited) clauses.

This list included many clauses - such as an obligation not

to challenge the validity of licensed patents - that can have

exclusionary effects where they are contained in agreements

between companies holding large market shares. Given the

new thresholds, such agreements are in any event excluded

from the Regulation, and the clause can be removed from the

black list.

Thus, the revised draft has advantages and disadvantages

compared to the existing Regulation, both for the

Commission and for industry.

For the Commission, it would enable a regulatory approach

to IP licensing more modelled on economic and commercial

reality. It would permit the Commission to monitor far more

closely those agreements that are of potential concern. On

the other hand, it would probably mean an increased

workload through additional notifications.

For industry, there would be winners and losers. Agreements

between companies where the thresholds are not met would

be permitted a much greater degree of freedom to chose

which clauses to include in their licenses, and which to omit.

Albeit that the companies would have to calculate their

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