The European Antitrust Review 2015

Germany: IP and Antitrust

30 July 2014

Licence Agreements Under Scrutiny: A New Challenge for Non-Challenge Clauses Licence agreements - in principle pro-competitive In general, intellectual property licence agreements are deemed pro-competitive.1 Licensing leads to the dissemination of technology and can lead to follow-on innovation.2 Furthermore, if third-party technology can be licensed, research and development expenditures can be used more efficiently (since duplication of R&D efforts and expenditures can be reduced).3 Finally, commercialising goods via licensing is one of the key privileges of any intellectual property right since it is the very essence of an exclusive right,4 such as patents and copyrights, to permit the use of that property by others in exchange for consideration. As is also true for other property rights, however, the exercise of this exclusive right is not immune from scrutiny under competition law.5

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