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Title: The Competition-IP Dichotomy: Emerging Challenges in Technology Transfer Licenses
Authors: Kutty, Aditya A
Chakravarty, Sindhura
Keywords: IPR;Commercialization;Anticompetitive practices;FDI;Joint ventures;Technology transfer licences
Issue Date: May-2011
Publisher: NISCAIR-CSIR, India
Abstract: Technology transfer agreements are necessary to fulfil technological needs that are impossible to meet with local technical capabilities. Traditional devices of licence transfer often fall within the purview of antitrust scrutiny and are deemed anti-competitive practices in general trade, as in the case of territorial restrictions in licensing. Antitrust laws, although fit to evaluate general trade agreements, often fail to address intricate problems involving IPR and therefore, lack the tools to adequately solve them. The blanket protection approach to IP as provided by Section 3(5) of the Indian Competition Act is equally ineffective due to lack of a mechanism to deal with IP-related unfair trade practices. The TRIPS under Article 40, permits member states to prevent abuse of IP through anti-trust legislations. India has permitted cross licensing under its patent laws but has failed to prevent its anti-competitive fallout in technology licensing. This article draws from the EU TTBE 2004 Regulations as well as the US antitrust guidelines to highlight the need for a balance between the two conflicting interests of competition policy and the protection of technological know-how. It further purports to set forth an adaptation of guidelines for India, keeping in mind the anti-trust laws of other jurisdictions.
Page(s): 258-266
ISSN: 0975-1076 (Online); 0971-7544 (Print)
Appears in Collections:JIPR Vol.16(3) [May 2011]

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