The impact of Article 81 EC Treaty on the licensing of intellectual property rights within the European Union.

Abstract

The scope of this thesis is to delineate the instances where the licensing of intellectual property rights has the potentiality of preventing, restricting or distorting competition within the common market of the European Union according to Article 81 EC Treaty. The EC Commission and the European Court of Justice have always been aware that certain restrictions contained in licensing agreements, especially those granting exclusive territorial protection, infringe such Article 81. Throughout the first two chapters of this thesis the author shall portray the historical development of the Commission's decision-making and block exemption policy in terms of intellectual property licensing agreements. However, the Commission has only succeeded in enacting block exemptions that regulate purely technology transfer agreements, and not any other forms of intellectual property rights. This is mainly the reason why, throughout this thesis, the author has primarily focused on the licensing of know-how, patents, and software copyright. The third and fourth chapters meticulously analyse the provisions and the Guidelines of the new Technology Transfer Block Exemption Commission Regulation 772/2004. The latter mirrors the Commission's relatively more lenient approach adopted towards licensing agreements. The author shall then proceed to delineate the system adopted in the US in its US Antitrust Guidelines. This is due to the fact that the Commission, in an evaluation report on technology transfer agreements, had depicted the US approach as a prototype in the field of the licensing of intellectual property. Lastly, in the final chapter to this thesis, it was equally important to focus on other intellectual property rights, namely trademarks and copyright which, although have not been deemed worthy of a block exemption regulation by the Commission, are nonetheless imperative to maintaining a competitive common market.