In the context of technology transfer agreements, an open exclusive licence, which remains within the substantive scope of the intellectual property right, is not restrictive by object Nungesser.
The most relevant of these precedents is perhaps BAT v Commission.
The Court found that the agreement was restrictive by object because it gave BAT protection that it would not have enjoyed by virtue of the trade mark. It is also a judgment that shows that there is no potential competition where an intellectual property right can be invoked to prevent market entry.
A substantial part of the analysis is devoted to factual questions. What would have happened in the absence of the agreements. This question, as many others, must be assessed against the counterfactual. I will certainly not try to summarise it in around 1, words.
They would only infringe Article 1 TFEU by their very nature when they fall outside the substantive scope of the trade mark.
Interestingly, the Commission submission in Erauw-Jacquery made exactly this point. The General Court seems to conflate ex ante and ex post considerations.
In that case, the Court held that the assignment of a trade mark is not necessarily restrictive by object. This is the issue considered by the General Court in E.
In the same vein, considerations about the probability of a successful challenge should not play a role in the analysis. These agreements are used to address the risk of confusion.
It would be important if the Court confirmed the long-standing principle according to which EU law does not question of the existence of an intellectual property right.
To use a graphic example: As a result, it draws a somewhat simplified picture of the economic and legal context of which the agreements are part.
If these producers are indeed found to be potential competitors in the relevant economic and legal context, it is inevitable to conclude that the agreements are restrictive of competition by object. The Lundbeck judgment against the applicable case law I have already pointed out that pay-for-delay takes place in a very peculiar economic and legal context.
In other words, it went beyond the substantive scope of the intellectual property right. In many ways, the underlying issues are the same as those found in pay-for-delay agreements.
These are the issues of principle that I would love to see addressed in an appeal: For instance, the generic producers may not see the prospect of an injunction as realistic, either because they believe they would be successful in the event of a challenge para or because they do not believe that the patent holder would bring an action in the first place para.
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