tag:blogger.com,1999:blog-5574479.post1000432997759435245..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: Should We Allow the Overleveraging of IP Rights By Contract?Verónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-3034150374290930612012-10-02T12:10:02.716+01:002012-10-02T12:10:02.716+01:00In the US the K-Dur antitrust litigation seems to ...In the US the K-Dur antitrust litigation seems to be on its way to the Supreme Court after a federal appeal court judged agreements between patentees and generics-makers to 'pay to delay' selling of generics as 'unreasonable restraint of trade'.Sulemanhttp://www.hollyip.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-51892287320083364752012-10-02T04:04:35.730+01:002012-10-02T04:04:35.730+01:00On a more general thought, isn't this issue in...On a more general thought, isn't this issue inherent to the nature of any license/rental agreement? A property owner has an exclusionary right against everyone in the world, and can license that right to a third party, who now can also have exclusionary rights against the whole world. If we cross license, we now have both leveraged our initial exclusionary rights for greater exclusionary rights against others, however we have done so by giving up a portion of our original rights. <br /><br />I think the differential perspective with IP rights can in part be traced to the common distinction between IP rights theoretical effect versus their practical effect. A patent might have an exclusionary right in theory, but be unenforceable economically on its own. If a number of patent holders in this situation use a series of license agreements to create a patent pool there is no theoretical net change in the patent grant, but the practical ability to exclude for each of the pool members against the world at large can be greatly increased.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-61588991012491937212012-10-01T11:11:55.885+01:002012-10-01T11:11:55.885+01:00No black and white answers here. There is every r...No black and white answers here. There is every reason why a party receiving a licence to use IP is indeed in a different position from the rest of the world and both parties might legitimately expect a clearer berth to be given to the conveyed rights than would arise under general law. A licensee of, say, trade mark rights would be in a very strong position from legitimate usage to build reputation in relation to other goods or services, or different brands, in a way that would not be available to those whose use of the registered mark for a registered purpose. The brand values can be "rubbed off" onto other marks or extended to other goods. It may therefore be a legitimate point for the rights owner to agree limits on other activities associated with the mark even if in a third party's hands those activities would be unchallengeable. Similarly, access to trade secrets (and employees and other materials) may make legitimate reverse engineering much easier and the results more readily interpreted, and may increase incentives and rewards for the reverse engineering activity. Again, the licensee is placed in a unique position by a licence. In the licensee's hands, otherwise legitimate activity may acquire extra value and allocation of those benefits by contract can and should be part of the commercial bargain. A rights holder facing a serious risk of being ripped off more effectively by any licensee than by joe public is likely to hold out against licensing, thus defeating what the guidelines to the Technology Transfer Regulation recognise as the procompetitive effects of licensing. The point is that, as with so much in this area, whether in any particular case the overall effects are anticompetitive or procompetitive requires an open mind and an individual assessment. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19166701063480397582012-09-30T18:54:49.870+01:002012-09-30T18:54:49.870+01:00Expanding the scope of an IP right by contractual ...Expanding the scope of an IP right by contractual obligations - quelle horreure! Within the EU, that is likely to bring the competition law police running! They don't much like IP generally, and certainly don't like it being expanded. See, for example, the grey-listing of no-challenge clauses under the Technology Transfer Regulation.Markhttp://www.ipdraughts.wordpress.comnoreply@blogger.com