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1
FOU
and
territorial
restraints
(intra-‐brand)
Example
1
• SoOware
vendor
licenses
inventory
management
program
to
hospitals
and
:;<<=*"-5 :><=*"-5
doctors’
offices
• Field
of
use
restricTons
• Territorial
restricTons
• Different
royalTes
(hospitals
pay
more)
• No
compeTTve
concerns
!"#$%&'( !"#$)"'*"+ • Hospitals
and
doctors
are
neither
present
nor
likely
!"#$)"'*"+ 6".-#-'" future
compeTtors
in
the
market
for
inventory
management
soOware
(verTcal)
• Intra-‐brand
restraint.
Nothing
prevents
hospitals
or
doctors
from
using
a
compeTng
product
(no
exclusivity,
no
possibility
of
foreclosure)
,-./0&'1/- 7'/8&1- • Nothing
keeps
hospitals
or
doctors
from
developing
2-*3/145&1 ,-1-9- their
own
compeTng
products
• Cost
of
license
is
so
small
that
it
cannot
facilitate
coordinaTon
in
the
downstream
(healthcare)
market
among
hospitals
or
doctors
2
Technology
and
goods
markets
Example
2
4.(0#&/"0 • AlternaTves
to
drug
X,
here
drug
Y.
The
more
compeTTve
the
downstream
(goods)
market,
the
lower
the
ability
of
A
and
B
to
raise
prices
vis-‐a-‐vis
the
consumers
3
Cross
licensing
future
patents,
innovaTon
markets.
Example
3
4
Exclusive
R&D
JV,
innovaTon
markets
Example
4
• A,
B,
and
C
set
up
a
R&D
JV
for
the
development
of
a
new
product
technology.
The
JV
will
license
all
patents
! # " and
know
how
to
A,
B,
and
C
but
no
one
else.
• A,
B,
C
are
current
R&D
compeTtors
• No
per
se
issues
here.
The
agreement
does
not
implicate
price
fixing
or
overt
output
reducTon
5
VerTcal
v.
horizontal
agreements
Examples
5
and
6
• A
and
B
are
compeTng
farm
equipment
#$%&'(&)*+)(,-&.$+. manufacturers.
A
grants
B
a
patent
license
&/$(($+')%+'*.+0
*&%1'+0+23)45.+67
to
A’s
new
emission
control
technology.
B
! -6*&'*)%06$/8
" grants
A
a
license
to
its
valve
technology.
• The
emission
license
is
verTcal
• B’s
technology
does
not
constrain
the
price
of
A’s
much
superior
technology.
Since
B’s
technology
is
no
subsTtute,
A
and
B
are
not
current
compeTtors.
#$%&'(&)*+)%+/-6.650&
<60<&)*&%1'+0+23)
• A’s
patent
claim
is
broad
such
that
B’s
likely
4'6..+=)-6*&'*)%06$/8
improvements
to
its
own
technology
would
infringe
A’s
patents.
B
is
thus
not
a
likely
future
compeTtor.
!9():6./)
&;,$-/&'*
"9():6./)
&;,$-/&'*
• The
valve
license
is
horizontal
• A’s
valve
technology
constrains
the
price
of
B’s
comparable
technology.
A
and
B
are
actual
compeTtors.
• B’s
patent
claims
do
not
stand
in
the
way
of
A’s
likely
improvements.
A
is
thus
a
likely
future
compeTtor.
• This
does
not
mean
that
the
license
poses
a
problem.
6
Sham
restraints,
per
se
illegal
agreements
Example
7
• A
sells
widgets
using
a
patented
process
in
compeTTon
with
other
vendors.
A
licenses
" its
process
to
every
other
widget
vendor,
assigning
exclusive
territories.
The
licensees
do
not
use
A’s
process,
but
they
abide
by
the
license
restricTons.
!" #$ %& • Per
se
illegal
territorial
allocaTon
• A
and
the
other
vendors
are
compeTtors
in
the
widget
market
• The
“licensees”
do
not
care
about
A’s
technologies.
They
care
about
the
restricTons
that
come
with
it.
• The
agreement
is
horizontal,
because
the
licensees
would
be
compeTtors
in
the
absence
of
the
(restricTons
that
come
with
the)
license
7
Exclusive
license
and
exclusive
dealing
Example
8
• A
is
the
inventor
and
vendor
of
new
flat
% panel
technology.
To
commercialize
the
product,
A
licenses
the
product
to
B.
B
is
not
developing
technology
similar
to
A’s.
• The
license
contains
two
restraints
!8#$9$&'()$*+)$(2// !"#$%$&'()$*+)$,-.*)$.
:-+;'1)($1+&:2<*, /012*(2$)+$.*3+*2$2/(2 • A
must
not
grant
a
license
to
anyone
else
(exclusive
=0)>$)>+(2$2&?+;30*, 4251/'(062$/012*(27 license,
restraint
on
the
licensor)
%@($)21>*+/+,3 • B
must
not
sell
products
compeTng
with
those
4251/'(062$;2./0*,7
embodying
A’s
technology
(exclusive
dealing,
restraint
on
the
licensee)
•
9 Exclusive
licenses
in
a
verTcal
senng
are
almost
always
procompeTTve
• Exclusive
dealing
may
restrict
compeTTon
from
others,
depending
on
the
level
of
foreclosure
• Here,
there
are
several
technologies
compeTng
with
B’s
products,
so
there
are
no
foreclosure
concerns.
8
Patent
pooling:
Blocking
and
subsTtute
patents
Examples
9
and
10
• A
and
B
sell
compeTng
patented
widgets.
They
also
license
their
widget
patents
to
# third
party
widget
manufacturers.
A
and
B
create
C
as
a
50/50
JV
and
assign
all
widget
patents
for
licensing
to
C.
C
sets
the
price,
revenues
are
split
between
A
and
B.
9
License
in
lieu
of
acquisiTon
Example
11
10