In both the U.S. and the EU, it is generally acknowledged that the enforcement and commercialization of IP rights must comply with the applicable antitrust laws. This is particularly true for IP licensing. While the majority of provisions in license arrangements will not be problematic from an antitrust perspective, some restrictions may raise antitrust concerns (particularly due to a potential violation of the respective cartel bans). Both the U.S. and the EU have set up a legal framework of IP-related antitrust legislation, varying in structure and content, but featuring a common core of overall principles. It is the common view in both regimes that IP rights and antitrust laws “share the common purpose of promoting innovation and enhancing consumer welfare.” Nonetheless, where it is applicable, antitrust law poses a potential threat to void relevant clauses or even an entire agreement, and undertakings run the risk of being fined for any violation of antitrust law. Thus, it is indispensable to take into account relevant antitrust law when drafting and negotiating licensing agreements. In the following paragraphs we will discuss the key antitrust concepts that need to be borne in mind when licensing IP in transatlantic business.
Jens is a counsel at Morrison & Foerster’s German office in Berlin. He advises clients in all areas of European and German competition law, including merger control filings, cartel authority investigations, cartel damage claims, distribution cartel law, antitrust compliance programs and unfair competition law. Jens has particular industry-specific experience in the areas of media, technology, telecommunication, transport and aviation. In addition, he advises in More ›
Wolfgang Schönig is a partner of Morrison & Foerster (International) LLP based in our German office in Berlin. His practice specialty is advising on IP aspects relative to transactions in, among others, the life sciences, AgTech and pharmaceuticals industry, as well as legal representation in IP disputes. Wolfgang is specialized in research and development collaborations, complex licensing agreements, technology acquisitions, know-how protection strategies, and employee invention law. More ›
Jeff Jaeckel is a co-chair of Morrison & Foerster’s Global Antitrust Law Practice Group and a member of the board of directors of Morrison & Foerster LLP. Jeff is an experienced antitrust litigator and counselor. He represents foreign and domestic corporations in connection with all manner of antitrust and competition law matters, from M&A strategy and investigations to cartel investigations to civil litigation. Jeff More ›