Technology Licensing Agreements. Comparative Study between the EU and the U.S.

Abstract: Innovation is the source of new products and processes that expand the frontiers of competition. Advancements in technology are continuously occurring throughout the world as firms seek to develop new ideas for their products, services and markets. Most technology licensing is pro-competitive and should be encouraged by competition authorities. Nevertheless, in legal and economic spheres the connection among IP policy and competition law is an enduring subject matter of discussion, for the reason that both policies have possibly conflicting aims. In a higher level of analysis, it could be said that IP and competition law are complementary since they both pursue the promotion of consumer welfare. However they seek different interests towards the achievement of such target. IPR laws will attain consumer welfare by not encouraging the innovator's welfare, but ensuring an incentive to reward its effort, and by promoting technological development to the final profit of the consumers. On the contrary, competition laws will do such duty by protecting competition as the source of power of efficient markets, providing the best quality products at the lowest prices. The purpose of this thesis is double. Firstly, to examine the key question of to what extent should competition policy intervene with IPR law. Is there any way to achieve a good balance between both policies? Indeed, it is in this field that marked differences exist between the EU and the US. In general, EC competition law has placed more limits on the exploitation of IPR than U.S. competition policy. In view of the first aforesaid problem, the second aim of this work intends to investigate and compare the principles guiding the legal schemes of technology licensing agreements in European competition law (2004 Technology Transfer Block Exemption Regulation) and American antitrust law (1995 Guidelines for the Licensing of Intellectual Property). The new EC legal framework concerning technology transfer agreements, with its new economic effects-based model, seems more similar to the US system, in both, style and substance Nevertheless, it will be further analyzed if in reality the EU approach remains stricter than the US one, or, to the contrary, the US policy is not as lenient in practice as it looks. Throughout the development of the current report, the accomplishment of new similarities between the EC and US competition systems regarding technology licensing has been deeply and detailed discussed. This signifies a great progress towards the convergence across both jurisdictions. Nevertheless, there are still remaining substantial differences that should be counteracted in the coming future, such as a higher concern in the EU on intra-technology/brand competition in general, and on territorial restrictions in particular. To some extent, these lasting disparities of both systems reflect the distinct guiding principles in EU and U.S. competition law. While the U.S. antitrust law is motivated with the importance of efficiency and free trade policy, the EU competition law on the contrary is driven by the belief in the importance of fairness and the development of an integrated European market. Consequently, to achieve an ideal equilibrium between IPR and competition policies is not such an easy task.