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NISCAIR ONLINE PERIODICALS REPOSITORY (NOPR) >
NISCAIR PUBLICATIONS >
Research Journals >
Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.16 [2011] >
JIPR Vol.16(3) [May 2011] >
| 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 |
| CC License: |  CC Attribution-Noncommercial-No Derivative Works 2.5 India |
| ISSN: | 0975-1076 (Online); 0971-7544 (Print) |
| Source: | JIPR Vol.16(3) [May 2011]
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