Decree No 200 / 2001 Coll.
Ordinance of the Office for the Protection of Competition concerning the Authorisation of a General Exemption from the Prohibition of Competition Agreements pursuant to Sections 3 (1) and 4 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, for certain types of technology provision agreements
Valid
Order
Effective from 01.07.2001
Text versions:
01.07.2001
20.06.2001
200
DECLARATION
The competition authority
of 5 June 2001
on the authorisation of a general exemption from the prohibition of agreements distorting competition pursuant to § 3 (1) and § 4 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, for certain types of technology provision agreements
According to Section 26 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, the Authority provides:
The prohibition provided for in Articles 3 (1) and 4 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, hereinafter referred to as "the Law ', where the conditions laid down in this Decree are met, does not apply to licensing contracts for industrial or other intellectual property, including know-how licensing contracts, or to mixed licensing contracts for industrial or other intellectual property articles, including know-how, where only two competitors are parties to the Agreement, even if those agreements contain additional arrangements concerning other rights, insofar as they contribute to the achievement of the objectives of this Agreement, and agreements in which the transferee of an industrial or other intellectual property, including knowhey (hereinafter referred to as a provider), delegate the exercise of industrial or other intellectual property rights to third parties.
For the purposes of this Order
(a) know-how means a set of unpatented technical, commercial and other essential and identified experience and knowledge not known or generally available. Information necessary for the licensee to use it shall be considered to be material experience or knowledge. Such information shall be considered to be an identified experience or knowledge which is described in sufficient detail to enable it to be verified that it meets the criteria of secrecy and materiality. A description of the know-how may be part of a licence contract, a separate agreement or recorded in another appropriate form,
(b) the subject of industrial or other intellectual property is, in particular, an invention, a utility model, an industrial design, topography of semiconductor products, a trademark or a designation of the origin of the product;
(c) the necessary object of industrial or other intellectual property means the object of industrial or other intellectual property related to the technology transferred, without which the technology transferred can only be used to a limited extent, e.g. due to higher costs;
(d) technology transferred shall mean the knowledge-how or the necessary industrial or other intellectual property object which exists at the time of the conclusion of the first licensing agreement, and the improvements subsequently made, irrespective of the extent to which they are used by the parties to the agreement or other acquirer;
(e) licensed goods means goods the production of which requires the technology transferred;
(f) active selling means the activity of the seller in seeking interested parties to purchase certain goods, in particular by promoting, maintaining a distribution warehouse or creating branches;
(g) passive sales shall mean the receipt of orders made by interested parties to purchase certain goods without, however, being sought by the seller;
(h) the licensee's share is the share held by the licensed products and other interchangeable products or services provided by the licensee throughout the market for licensed products and services;
(i) control shall mean the holding of a business or share in capital of more than 50% or the right to appoint or withdraw a majority of the members of the statutory body, supervisory board, directors of a legal person or the possibility of otherwise exercising decisive influence over the management of a legal person;
(j) a mixed licence contract means a contract containing the right to use an industrial property or other intangible property.
(1) The prohibition provided for in Articles 3 (1) and 4 (1) of the Act does not apply to agreements containing:
(a) an undertaking by the licensor not to grant this licence for the use of the technology provided to other competitors in the contractually defined territory;
(b) an obligation on the licensor not to use the technology itself in a contractually defined territory;
(c) an obligation on the licensee not to use the technology provided in the territory reserved by the licensor;
(d) an obligation on the licensee not to produce or use the licensed goods or not to use the licensed procedures in territories which are contractually defined to other licensees;
(e) an obligation on the licensee not to actively sell licensed goods outside the demarcated territory, in particular not to advertise non-demarcated territories, to establish branches there and not to maintain distribution warehouses;
(f) an obligation on the licensee not to sell the licensed goods passively outside the designated territory;
(g) an obligation on the licensee to use only the trade mark of the licensor or the modification used by the licensor for the duration of the contract, provided that the licensee is not prevented from designating himself as the manufacturer or supplier of the licensed goods; or
(h) an obligation on the licensee to limit his production of the licensed goods to the quantity required in the manufacture of his own goods and to sell the licensed goods only as an integral part of his goods or as a replacement part of his goods or otherwise in connection with the sale of his goods, provided that the licensee determines the quantities himself.
(2) However, licensing contracts for industrial or other intellectual property shall not be subject to the prohibition provided for in Articles 3 (1) and 4 (1) of the Act only for the period when the subject of industrial or other intellectual property is subject to legal protection in the territory of the licensor or licensee.
(3) The prohibition provided for in Articles 3 (1) and 4 (1) of the Act shall not apply to licensing contracts for a period not exceeding 10 years from the first placing on the market of the licensed goods by one of the buyers of the know- how; However, this provision shall not apply where the knowledge becomes generally known before the expiry of that period.
(4) Licensing agreements containing the undertaking referred to in paragraph 1 (f) shall not be subject to the prohibition under Articles 3 (1) and 4 (1) of the Act only for a period not exceeding 5 years from the first marketing of the licensed goods by one of the licensees.
(5) Licensing agreements containing the obligation referred to in points (g) and (h) of paragraph 1 shall not be subject to the prohibition provided for in paragraphs 3 (1) and 4 (1) of the Act only as long as the knowledge is secret, material and identified.
(6) However, mixed licensing contracts for industrial or other intellectual property, including knowhow, shall not be covered by the prohibition provided for in Articles 3 (1) and 4 (1) of the Act only for the period when the subject of industrial or other intellectual property is subject to legal protection in the territory of the licensor or or licensee, or for the period when the knowhow is secret, material and identified, for a maximum period of 5 years.
(1) The prohibition provided for in Articles 3 (1) and 4 (1) of the Act does not apply to agreements involving the licensee's undertaking
(a) maintain confidentiality regarding the knowledge-how covered by the licence contract, even after the end of the licence contract;
(b) not to transfer or grant licences to other persons;
(c) not to use the know-how or the object of industrial or other intellectual property covered by a licence agreement after the end of the validity of the licence agreement, only for as long as the knowledge remains secret or the object of industrial or other intellectual property in force;
(d) to grant licences for all improvements to the licensee or to new uses of the technology provided and to conclude with the licensor a non-exclusive licensing contract for such improvements, provided that they are separable improvements and that the licensee is able to use them himself or on them to conclude licensing agreements with third parties, provided that they do not contain a knowledge-how of the licensor which remains secret and that the licensor undertakes to grant the licensee an exclusive or non-exclusive licence for his own improvements;
(e) comply with the quality requirements, including the technical specifications of the licensed product, or obtain goods from the licensor or or another person designated by the licensor, provided that such qualitative and technical specifications or goods are necessary for the technically correct use of the licensed technology or to ensure that the products of the licensee comply with the quality requirements used by the licensor and other licensees; the licensor has the right to verify compliance with this obligation;
(f) inform the licensor of any infringement of industrial or other intellectual property rights or of any unauthorised use of know-how, take appropriate action against persons infringing those rights, or provide the licensor with assistance in legal proceedings against such persons;
(g) to pay for the use of the licence
1. until the end of the period of validity of the licence agreement on the basis of the amounts, periods and methods agreed by the parties to the agreement, provided that the know-how has become generally known in a manner other than that of the licensor; This is without prejudice to the possibility of claiming compensation if the knowledge becomes generally known as a result of the conduct of the licensee in breach of the licensing contract,
2. after the end of the licensing contract,
(h) limit the use of the technology provided to one or more technical areas of the application covered by the technology provided or to one or more product markets;
(i) pay a minimum fee for the use of a licence or produce a specified minimum quantity of licensed goods or carry out a minimum number of operations using the technology provided;
(j) designate the licensed goods by the name, name or business name of the licensor or by the designation of the licensed subject of industrial or other intellectual property;
(k) not to use the provider's technology to create production facilities for third parties; This provision does not prevent the licensee from increasing the capacity of his or her equipment or equipping himself with other equipment for his own use under normal commercial conditions, including payment of additional remuneration for the use of the licence,
(l) to supply only a limited quantity of licensed goods to a specific customer where the licence is provided with an arrangement that the customer may have a second source of supply within the contractually defined territory; This provision shall also apply where the customer is the licensee and the licence granted for the purpose of creating a second source of supply indicates that the customer himself produces the licensed goods or has them produced by a subcontractor; or
(m) make efforts to manufacture and sell licensed goods.
(2) The prohibition provided for in Articles 3 (1) and 4 (1) of the Act does not apply to agreements involving the obligation or possibility of the licensor
(a) to provide the licensee with more favourable conditions than it will provide another competitor after the conclusion of the licence contract;
(b) reserve the exercise of industrial or other intellectual property rights to object to the unauthorised use of the technology provided outside the contractually defined territory;
(c) reserve the right to terminate a licence contract where the licensee denies the secrecy or essential nature of the knowhow or the absence of an industrial or other intellectual property right belonging to the licensor or persons associated with it;
(d) reserve the right to terminate a licence contract in respect of an industrial or other intellectual property object where the licensee objects that an industrial or other intellectual property object is not necessary; or
(e) terminate the exclusivity granted to the licensee and continue not to grant him an improvement licence if the licensee competes with the licensor when it concerns research and development, production, use or distribution of competing goods; the licensor has the right to require the licensee to demonstrate that the licensed knowhow is not used for the manufacture of goods and services other than those covered by the licence.
(1) However, the prohibition provided for in Articles 3 (1) and 4 (1) of the Act always applies to agreements where:
(a) one of the Parties to the Agreement is directly or indirectly limited in determining the selling prices of the licensed goods or, where applicable, their components or discounts;
(b) one of the Parties to the Agreement shall be limited to the possibility of competing with the other Party or with other competitors in connection with research and development, production, use or distribution of competing goods; the obligations arising from the provisions of Sections 4 (1) (m) and 4 (2) (e) are not affected by that provision;
(c) without objectively justifiable grounds, oblige one or both Parties to the Agreement to refuse to comply with orders made by users or sellers operating in their territory who would continue to sell the goods in question in other territories or to make it difficult for users or sellers to obtain the goods from other sellers;
(d) the parties to the Agreement make it difficult for users or sellers to obtain contract goods from other competitors, in particular through the exercise of industrial or other intellectual property rights or other measures preventing the licensee from placing contract goods on the market in which the licensee is entitled to use the licensed contract goods, or by other measures preventing the licensee from obtaining the licensed goods outside the contractual territory or placing on the market in the contractual territory of the licensee or with his consent;
(e) the parties to the agreement were competing competitors before the conclusion of the licence agreement and one of the parties to the agreement is limited within the same technical area or product market in the choice of customers to whom the licensed goods may be supplied, in particular by prohibiting the supply of certain customer groups, to use certain forms of distribution or packaging methods; the liabilities arising from the provisions of Paragraph 3 (1) (g) and Article 4 (1) (l) are not affected by that provision;
(f) the quantity of licensed goods which may be produced or sold by one of the Parties to the Agreement or the number of activities benefiting from the licensed technology that one Party may carry out; the obligations arising from the provisions of Sections 3 (1) (h) and 4 (1) (l) are not affected by that provision;
(g) the licensee is obliged to transfer to the licensor the rights to improve or reapply the licensed technology;
(h) the licensor is contractually obliged not to grant licences to third parties for a period exceeding those referred to in § 3 (2), (3), (4) and (5) if the licensed technology is improved; or
(i) one of the Parties to the Agreement shall be restricted for a period exceeding the periods referred to in paragraphs 1, 2, 3, 4, 5 and 6 of Paragraph 3 in order to benefit from the licensed technology in question in the territory of the other Party or in the territory of other licensees of that technology.
(2) This decree does not apply to agreements
(a) concluded between owners of rights to industrial or other intellectual property objects or, where appropriate, authorized users of such rights, within the framework of patent or know-how of the association; However, the prohibition provided for in Articles 3 (1) and 4 (1) of the Act will not apply to cases where the parties to the Agreement are not, in any way, to any territorial restriction as regards the production, use and sale of the licensed goods or the use of the licensed technology,
(b) concluded between competing competitors who have shares in the voting rights of the joint venture or between one of those competitors and the joint venture, where the licence agreements concern the activities of the joint venture concerned; However, the prohibition provided for in Articles 3 (1) and 4 (1) of the Act shall not apply to cases where one of the Parties to the Agreement grants the Joint Undertaking a licence for an industrial or other intellectual property object, including knowhow, provided that the licensed goods do not represent on the market more than 20% of the goods which are identical or considered to be interchangeable with respect to their characteristics, price and intended use, where the licence is limited to production and not more than 10% where the licence relates to production and distribution,
(c) according to which one Party to the Agreement grants a licence to the other Party to an industrial or other intellectual property object, including know-how, and the other Party to the Agreement grants a licence to an industrial or other intellectual property object, trade mark or know-how or the right of exclusive sale where the Parties to the Agreement are in competition with each other in respect of goods covered by licence agreements; However, the prohibition provided for in Articles 3 (1) and 4 (1) of the Act will not apply in cases where the parties are not, in any way, limited in territorial terms to the production, use and sale of the licensed goods or the use of the licensed technology,
(d) containing provisions relating to industrial or other intellectual property rights, other than rights which are not merely ancillary in nature; or
(e) concluded solely for the purpose of the sale of the licensed goods.
(3) In the case referred to in point (b) of paragraph 2, the prohibition provided for in paragraphs 3 (1) and 4 (1) of the Act shall also not apply to technology agreements where, for two consecutive calendar years, market shares are not included in paragraph 2 (b). (b) exceeded by more than 10%; where those market shares are exceeded by more than 10%, the prohibition provided for in Articles 3 (1) and 4 (1) of the Act shall not apply to technology agreements for a period of 6 months after the end of the year in which the market shares were exceeded.
By its decision, the Competition Authority may withdraw the advantages of the general exemption provided for in this Decree if, as a result of market developments, the effects of an agreement subject to a general exemption do not comply with the conditions for authorising an individual exemption under Article 8 of the Law. In particular, these may be cases where:
(a) as a result of the agreement, the licensed goods are prevented from being exposed to effective competition on the market by the same goods or goods which are considered to be interchangeable to the consumer in view of their characteristics, price and intended use; the licensed goods are not exposed to effective competition in particular if the market share of such goods exceeds 40%;
(b) the licensee refuses to satisfy orders from users or sellers from territories which are contractually defined to other licensees without objectively justifiable reason;
(c) the Parties to the Agreement refuse, without objectively justifiable reason, to satisfy orders from users or sellers operating in their contractually defined territory who would sell licensed goods in other territories or make it difficult to obtain licensed goods from other dealers;
(d) the parties to the Agreement were competing competitors at the time the licence was granted and the licensee's contractual obligations to produce a minimum quantity or effort in the sale result in the exclusion of the licensee from the possibility of using competing technology; or
(e) the Parties to the Agreement make it difficult for users or sellers to obtain contract goods from other competitors, in particular the exercise of industrial and other intellectual property rights or other measures preventing the acquisition of licensed goods outside the contractual territory or the placing on the market in the contractual territory of goods which have been placed on the market by or with the permission of the licensor.
(1) Furthermore, the prohibition provided for in Articles 3 (1) and 4 (1) does not apply to agreements which contain obligations other than those referred to in Article 3, but do not distort competition in any of the ways set out in Article 5, provided that the parties to the Agreement submit a draft of this Agreement to the Competition Authority for the authorisation of an exemption in accordance with the procedure laid down in the law and the Competition Authority does not decide on an individual exemption within two months of the date on which the proposal was received.
(2) Paragraph 1 shall apply in particular where the agreement contains:
(a) an undertaking by the licensee at the time of conclusion of the contract to adopt qualitative specifications, additional licences or to obtain goods or services which are not necessary for the technically satisfactory use of the licensed technology or to ensure that the production of the licensee complies with the qualitative requirements used by the licensor and the other licensees; or
(b) the prohibition on objecting to the secrecy or substance of knowhow or the existence of industrial or other intellectual property rights of the licensor.
The provisions of the Order shall also apply to:
(a) an agreement whereby the provider is not a Knowhow holder or holder of industrial or other intellectual property rights, but is entitled by the holder or holder to grant a licence;
(b) agreements on transfers of rights to industrial or other intellectual property objects, including knowhow, for which the risk of use remains with the provider;
(c) licensing contracts for which the rights or obligations of the licensor or licensee are assumed by the connected persons;
(d) agreements relating to the exploitation of inventions where the patent application has been filed for the licensed territory after the conclusion of the agreement, but within the time limits laid down by the rules governing industrial or other intellectual property rights; and
(e) licensing contracts for industrial or other intellectual property articles, including know- how licensing contracts, or mixed licensing agreements for industrial or other intellectual property items, including know- how, the originally agreed period of effectiveness of which is automatically extended on the basis of new improvements communicated by the licensor, provided that the licensee has the possibility to refuse such improvements or has the possibility of each of the parties to the agreement terminating the contract at the end of the originally agreed period of effectiveness and at least every three years thereafter.
For the purposes of this Decree, each Party to the Agreement shall include the associated persons. A common person means a person who:
(a) control and control the Party to the Agreement;
(b) controls the same person who controls the Party to the Agreement;
(c) are controlled by one or more of the persons referred to in (a) and (b) together.
This Decree shall take effect on 1 July 2001.
Chairman:
Ing. Bednář v. r.
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Regulation Information
| Citation | Decree of the Office for the Protection of Competition No 200 / 2001 Coll., authorising a general exemption from the prohibition of agreements distorting competition pursuant to § 3 (1) and § 4 (1) of Act No. 143 / 2001 Coll., on the Protection of Competition, for certain types of technology provision agreements |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.06.2001 |
|---|---|
| Effective from | 01.07.2001 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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