The Gazette 1976

GAZETTE

January-February 1976

which have no effect on trade between EEC Member

States are not subject to the Treaty. Licences limited to

only the use or the manufacture or the sale of the

patented product, or to a specified field of use (pro-

vided it is objectively real and so causes specialisation

rather than market sharing) and licences to manufac-

ture only in a given Member State, would normally be

valid. Clauses requiring payment of royalties, including

minimum royalties, are of course valid unless they out-

last the life of the patent or, in the case of differential

royalties, are disguised export restrictions. Limits on

the duration of a licence, if shorter than or equal to the

life of the patents, are permissable. Clauses prohibiting

sub-licensing or assignment, or requiring minimum pro-

duction levels or necessary quality standards, or requir-

ing goods to be marked, do not restrict competition. If

proper quality can only be ensured if the licensee uses

the patentee's raw materials or components, a "tying"

clause binding him to do so is legitimate. Secrecy

obligations, arbitration clauses and most-favoured-

licensee clauses are valid, and so are clauses requiring

the parties to grant new technology to one another,

provided they are reciprocal and non-exclusive. These

remarks relate to simple patent licences: it is difficult

to make general statements about patent pools, cross-

licensing, joint ventures and agreements for future

patents.

In several recent decisions the Commission has made

it clear that sole or exclusive licences, in which the

patentee binds himself not to grant any other licences

and not to use the technology himself, fall within Art.

85 if trade between Member States is affected. They

should therefore be notified to the EEC Commission.

This is because the licence restricts the freedom of the

patentee to exploit his invention, and deprives all other

potential licensees of access to the technology. However,

if it is really "indispensable" that the licence is ex-

clusive, it would normally be approved by the Com-

mission under Art. 85 (3), EEC Treaty.

Clauses remaining in force longer than the life of the

patent or the knowhow normally restrict competition,

and are illegal unless approved. So are prohibitions on

dealing in competing products, and clauses requiring

the licensee to include specified conditions in his con-

tracts with buyers. Exclusive or non-reciprocal grant-

back obligations, and clauses requiring royalties to be

paid on goods not made by the process or not incor-

porating the knowhow or invention licensed, are nor-

mally illegal. Contractual territorial restrictions on direct

sales, and clauses preventing the licensee from contest-

ing the validity of patents licensed, would require

strong justification to obtain exemption. Quantity re-

strictions are normally not permitted. Neither are re-

strictions on the exact place of manufacture or on the

way the licensee may sell (e.g. in bulk, wholesale or

only to certain customers). If the licensee is given

a veto on the granting of further licences, the licence

would be treated as a sole or exclusive licence.

Any clause which would otherwise be illegal may

nevertheless be approved by the Commission under

Art. 85 (3) provided that it improves production or

distribution or promotes technical or economic progress,

while giving consumers a fair share of the benefit. Also

the restriction on competition must be no more than is

indispensable to obtain the benefit, and competition in

respect of a substantial part of the products involved

must not be eliminated or capable of being eliminated

by the parties.

COURSES IN EUROPEAN LAW

EUOROPA INSTITUTE — UNIVERSITY OF

AMSTERDAM

Courses in European Integration

A General Course, as well as a Specialised Follow-Up

Course, in the Legal Aspects of European Integration

will be held in the Europa Institute of the University

of Amsterdam, 508 Herengracht, Amsterdam, from

16th to 27th August, 1976. The course will be in

English, and the Tuition Fee is 750 Dutch Guilders

(about £150 at current exchange rate). The lecturers

for the General Course are the authors of

Leading

cases and materials on the Law of the European

Communities,

Drs. Volker, Schermers, Winter and

Gijlstra. The Specialist Follow-Up Course which is

separate from the General Course, will comprise lec-

tures on the Judicial Remedies by Dr. Schermers, The

Relationship between National Law and Community

Law by Professor Baardman, Company Law and the

Right of Establishment by Professor Schrans and

Industrial property by Professor Van Gerven. Of the

total fee of £150, £25 must be paid before 15th July

and is not refundable. The balance may be paid on

registration. Participants are expected to arrange their

own accommodation. Application Forms are available

from the Netherlands Universities Foundation for

International Co-operation (NUFFIC), 27 Molenstraat,

The Hague, Netherlands, and should be returned

before 1st July, 1976.

BRUSSELS UNIVERSITY

Course in European Law

Under the auspices of the Wiener-Ansbach Founda-

tion, a Course entitled "Introduction to Civil Law and

to the Law of the European Communities" will be

held in the Faculty of Law of the Free University of

Brussels, 39 Avenue F. D. Roosevelt, Brussels 1050,

from July 26 to August 27, 1976. The term "Civil

Law" includes Commercial Law, Law of Contract,

Civil and Administrative Procedure, and even Crimi-

nal Law. The term "Law of the European Com-

munities" includes Community Institutions, The

Sources and Applicability of Community Law, Com-

petition, Establishment, Social Law, Tax Law, and the

Law of the Environment. As the course will be given

in French, by eminent Belgian and French professors,

it is essential for applicants to have a sufficient know-

ledge of French to follow a lecture and to participate

in a discussion. The Foundation has appointed various

Professors in Britain and Ireland to screen applica-

tions in the first instance. National University

graduates should first get in touch with Professor Niall

Osborough, Dean of the Faculty of Law, University

College, Belfield, Dublin 4, enclosing a relevant Cur-

riculum Vitae. Graduates of the University of Dublin

should get in touch with Professor Mary Robinson,

Faculty of Law, Trinity College, Dublin 2. A number

of scholarships amounting on an average to £275 to

cover fees, fares and maintenance expenses will be

awarded. The admission fee to the course is £25

(2,000 Belgian Francs) and the latest date for receipt

of applications in Brussels is 15th April, 1976.