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1、 2009 Pearson Education, Inc publishing as Prentice HallCHAPTER 9 INTELLECTUAL PROPERTY9-1 2009 Pearson Education, Inc publishing as Prentice HallCHAPTER 9INTELLECTUAL PROPERTYTopics for this chapter:lThe Creation of Intellectual Property RightslInternational Intellectual Property OrganizationslInte
2、llectual Property TreatieslInternational Transfer of Intellectual PropertylLicensing RegulationslCompulsory Licenses9-2Pearson Education, Inc publishing as Prentice Hall 2009Creation of Intellectual Property Rights lIntellectual property is useful artistic and industrial information and knowledge. I
3、t has two principle branches:1.Artistic property artistic, literary, and musical works.2.Industrial property inventions and trademarks. Inventions include both useful products and useful manufacturing processes. Trademarks include trade names, service marks, collective marks, and certification marks
4、. 9-3Pearson Education, Inc publishing as Prentice Hall 2009Creation of Intellectual Property RightsCopyrights A copyright is a statutory right that gives the author of an artistic work, for a limited period, the exclusive privilege of making copies of the work and publishing and selling the copies.
5、 The copyright holder has pecuniary rights and certain moral rights to the work.The rights belong to the author of any work that is fixed in a tangible medium for the purpose of communication, such as literary, dramatic, musical, or artistic works; sound recordings; film, radio, and television broad
6、casts; and certain computer programs.9-4Pearson Education, Inc publishing as Prentice Hall 2009CopyrightsPecuniary RightslPecuniary rights The right of an author to exploit a copyrighted work for economic gain.lThe two kinds of pecuniary rights are:The right of reproduction, including:Right of repro
7、ductionRight of distributionRight of exhibitionThe right of public performance, including:Right of recitation or performanceRight of broadcastingRight to communicate by sound or visuallyRight of connecting broadcast transmissions 9-5Pearson Education, Inc publishing as Prentice Hall 2009Pecuniary Ri
8、ghtslThe right of reproduction gives the author the exclusive right to make copies of a copyrighted work. Includes reproduction in any form.lThe right of distribution gives the author the right to place a copy of a copyrighted work into circulation for the first time.lDoctrine of exhaustion Once a c
9、opyrighted work is in circulation, author has no right of distribution.lAuthors may prohibit rental of work.9-6Pearson Education, Inc publishing as Prentice Hall 2009Right of PerformancelThe right of performance is the right of the author to communicate a copyrighted work to the public.lThis right a
10、pplies only to public performances, such as showing movie on a college campus and charging admission. A private performance would be viewing the same movie at home with friends. 9-7Pearson Education, Inc publishing as Prentice Hall 2009Case 9-1Performing Right Soc., Ltd. v. HickeylPlaintiffs sought
11、injunction to keep defendant from performing musical works without consent. Defendant played records at his barbeque restaurant in Zambia while holding dances. lHeld: Playing the records was a performance that infringed copyright. No damages awarded for unintentional infringement, but defendant liab
12、le for the profits he made. 9-8Pearson Education, Inc publishing as Prentice Hall 2009Moral RightslRight of an author to prohibit others from tampering with a copyrighted work.lThese rights are independent of the authors pecuniary rights.lMoral rights consist of right to:1.object to distortion, muti
13、lation, or modification,2.be recognized as the author,3.control public access to the work. Even if a work of art is commissioned by a party who acquires the copyright, the author or artist may retain the right to prevent others from tampering with the work. Photo: Mural depicting Irapuato history by
14、 Salvador Almaraz, released into the public domain. 9-9Pearson Education, Inc publishing as Prentice Hall 2009Case 9-2: Amar Nath Sehgal v. Union of IndialDoes the artist retain moral rights to mural commissioned by the Indian government?lPlaintiff assigned his copyright to the defendant.lMural was
15、ripped from wall and put in storage.lCourt recognized that there should be protection for the soul and essence of artistic expression as much as the physical tangible work. 9-10Pearson Education, Inc publishing as Prentice Hall 2009Works CoveredlCopyright protection is given to a work: an artistic,
16、literary, or scientific creation. lExamples of works covered by copyright laws:1.Literary works2.Musical works, including accompanying words3.Dramatic works, including accompanying music4.Pantomimes and choreographic works5.Pictorial, graphic, and sculptural works6.Motion pictures and audiovisual wo
17、rks7.Sound recordings9-11Pearson Education, Inc publishing as Prentice Hall 2009Works Subject To Copyright lTo be covered by copyright, a work must be original. The author must invest creative effort in raw materials that give them a new quality or character.lThe work must be fixed in a tangible med
18、ium:Story written on paperPicture painted on a canvasStatue sculpted from marbleMusic recorded on a compact disc9-12Pearson Education, Inc publishing as Prentice Hall 2009Neighboring RightslCreated mostly for technological works that fall outside of existing definitions of copyright.lInstead of amen
19、ding copyright laws like most developed countries, some countries created new laws with rights similar to copyrights. These laws are often called neighboring rights.lTwo examples were created in 1989 by treaty:Treaty on the International Registration of Audiovisual WorksTreaty on Intellectual Proper
20、ty in Respect of Integrated Circuits 9-13Pearson Education, Inc publishing as Prentice Hall 2009FormalitieslThe Berne Convention established that the title granted by copyright laws is subject to no formalities.lThe US formerly required the work to include a copyright notice and deposit of certain w
21、orks with the Copyright Office of the U.S. Library of Congress. When the US became a member of the Berne Convention, the requirement of no formalities became the rule throughout the world. 9-14Pearson Education, Inc publishing as Prentice Hall 2009Scope and Duration of Copyright lA copyright applies
22、 only within the territory of the state granting it.lThe duration of a copyright usually lasts 50 years following the authors death.lThe WTO TRIPS Agreement follows this precedent.lThe US and many nations have extended the duration to 70 years following the authors death. The WIPO is a UN agency tha
23、t develops IP laws and standards and delivers services in IP protection systems. See their website at: http:/www.wipo.int/portal/index.html.en 9-15Pearson Education, Inc publishing as Prentice Hall 2009Exceptions to Copyright ProtectionlThere are many uses of copyrighted material that do not constit
24、ute an infringement. Some of these include use:1.In a court or administrative proceeding2.For instructional purposes in schools3.For private purposes4.Brief quotation in scholarly works5.For quotation of newsworthy speeches or political commentaries9-16Pearson Education, Inc publishing as Prentice H
25、all 2009PatentslA patent is a statutory right that gives an inventor, for a limited period, the exclusive right to use or sell a patented product or to use a patented method or process.lTwo reasons for granting patents:1.Patents are a confirmation of the property rights of the inventor.2.A patent is
26、 a grant of a special monopoly to encourage invention and industrial development. 9-17Pearson Education, Inc publishing as Prentice Hall 2009Patents and Other Inventors GrantslMost countries grant three basic kinds of patents:1.Design patents granted to protect new and original designs of an article
27、 of manufacture.2.Plant patents granted for the creation or discovery of a new and distinct variety of a plant.3.Utility patents granted for the invention of a new and useful process, machine, article of manufacture, or composition of matter.lVariations include confirmation patents, patents of addit
28、ion, and precautionary patents.lPetty patents are granted for minor inventions.9-18Pearson Education, Inc publishing as Prentice Hall 2009Inventions That Qualify for Patent ProtectionlPatents may be obtained for any invention, whether a product or process, as long as they are “new, involve an invent
29、ive step, and are capable of industrial application.”lInvention is new if no other inventor has obtained a patent for the same invention.lIt involves an inventive step if the “subject matter” of the invention was not “obvious at the time the invention was made to a person having ordinary skill in th
30、e art to which the subject matter pertains.”lIt is capable of industrial application if the product or process is one that can be used in ordinary commerce. 9-19Pearson Education, Inc publishing as Prentice Hall 2009Case 9-3: Monsanto Co. v. Coramandal Indag Products, (P) Ltd.lMonsanto brought suit
31、in India for patent infringement against an Indian company that manufactured an herbicide product that killed weeds growing in rice fields.lThe active ingredient in the herbicide and its composition were well-known before the patent was granted and the emulsification necessary to apply the product w
32、as also a common practice.lCourt revoked the patent since neither the product or the process were new, nor did they involve any inventive steps not already known. 9-20Pearson Education, Inc publishing as Prentice Hall 2009Procedures For Reviewing Patent Applications9-21Pearson Education, Inc publish
33、ing as Prentice Hall 2009Inventions Excluded from Patent ProtectionA patent may be denied when the invention violates standards of morality or has no commercial application.lPatents may be denied when the requirements of patentability are not met.lMay also be denied to inventions that violate basic
34、social policy (i.e., suicide machine).lTRIPS allows WTO member to deny patent to protect public order or morality so long as the state forbids commercial exploitation of the invention. 9-22Pearson Education, Inc publishing as Prentice Hall 2009Duration and Scope of PatentslUnder the TRIPS Agreement,
35、 the minimum term for protection of patents has been set at 20 years for WTO members.lA patent is valid only within the state granting it. States cannot prevent the use of patented technology outside their territory.Structural diagram of a pharmaceutical. Longer protection time for patents aids drug
36、 companies. Copyright (C) 2000,2001,2002 Free Software Foundation, Inc. 51 Franklin St, Fifth Floor, Boston, MA 02110-1301 USA Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. 9-23Pearson Education, Inc publishing as Prentice Hall
37、 2009TrademarkslMerchants use five marks to identify themselves and their products:1.Trademarks a mark or symbol used to identify goods of a particular manufacturer or merchant.2.Trade name a mark or symbol used to identify a manufacturer or merchant.3.Service marks a mark or symbol used to identify
38、 a person who provides services.4.Collective mark a mark or symbol used by a group to identify itself to its members.5.Certification mark a mark or symbol used by a licensee or franchisee to indicate that a particular product meets certain standards. 9-24Pearson Education, Inc publishing as Prentice
39、 Hall 2009Acquiring TrademarkslTrademarks are acquired in two ways:1.by use and2.by registration.lFamous trademarks may not have to be registered to be protected. McDonalds Corp. has successfully challenged infringements of its trademark in several countries where its trademark was never registered.
40、lMost countries allow a local user of a mark to object to its registration by another individual even if the mark is not famous.9-25Pearson Education, Inc publishing as Prentice Hall 2009RegistrationlRegistration of a trademark is done to give notice to other potential users of ones claim in a mark.
41、lA trademark office will examine the application to see that the mark is suitable for registration and has not been previously registered.lIn order to be registered, the mark must (1) not infringe on another mark and (2) be distinctive. Distinctiveness means possessing a unique design that distingui
42、shes a product from other similar products.9-26Pearson Education, Inc publishing as Prentice Hall 2009Case 9-4Experience Hendrix v. HammertonlPlaintiff is a company formed by the family of Jimi Hendrix and owns the rights to his music, name, image, and recordings.lThe plaintiff alleged that the defe
43、ndants domain name of was confusingly similar to their name of jimi-; that the defendant had no rights or legitimate interest in respect to the domain name; and the domain name of the domain name holder has been registered and was being used in bad faith. 9-27Pearson Education, Inc publishing as Pr
44、entice Hall 2009Case 9-4 (continued)Experience Hendrix v. HammertonlHeld: The WIPO panelist decided: lHammerton registered the domain name merely to make a profit.lThe domain name would likely confuse the public as to the identity of the real Jimi Hendrix Fan Club.lHammerton had no legitimate rights
45、 to the name.lHis actions were in bad faith. lThe domain name was ordered transferred to the Experience Hendrix, L.L.C. 9-28Pearson Education, Inc publishing as Prentice Hall 2009Grounds for Refusing Registration of a Trademark lExamples of reasons to deny registration:1.Does not function as a trad
46、emark to identify the goods or services (not distinctive);2.Is immoral, deceptive, or scandalous;3.May disparage or falsely suggest a connection with persons, institutions, beliefs, or national symbols, or bring them into contempt or dispute; 4.Is the name, portrait, or signature of a particular liv
47、ing individual;5.Resembles a mark already registered;6.Is misdescriptive of the goods;7.Is primarily geographically descriptive. 9-29Pearson Education, Inc publishing as Prentice Hall 2009Registration Review and Term lOnce a trademark is deemed suitable for registration, it is published in the Trade
48、mark Offices official gazette. lOpponents then have a period of time (30-90 days) to oppose the registration.lTRIPS requires WTO members to protect trademarks for a term of at least seven years. It also provides that trademarks are to be indefinitely renewable. Trademark registration for Concordia C
49、ollege in the Rep. of Liberia for 15 years.9-30Pearson Education, Inc publishing as Prentice Hall 2009Usage RequirementlMany countries require the trademark holder to present proof, upon the renewal of registration, that the mark was actually used during the prior term.lSome require interim proof: M
50、exico at the end of the third year; US at the end of the sixth year.lUnder TRIPS, there must have been a nonuse of three years before the trademark can be challenged. Some states require challenger to show intentional abandonment by the owner.9-31Pearson Education, Inc publishing as Prentice Hall 20
51、09Know-HowlKnow-how is practical expertise acquired from study, training, and experience.lThough not normally protected by statute, know-how, or trade secrets, are often protected by contract, tort, and other areas of law.lTRIPS requires WTO members to protect what it calls “undisclosed information.
52、”lTo be protected, the information must 1.be secret,2.have commercial value because it is secret, 3.have been reasonably protected from disclosure. 9-32Pearson Education, Inc publishing as Prentice Hall 2009World Intellectual Property Organization (WIPO)lCreated in 1967 with the adoption of the Stoc
53、kholm Convention.lResponsible for administering the Paris and Berne Conventions and promoting intellectual property rights.lGoverning body is General Assembly, made up of representatives of 184 parties to Stockholm Convention. Is a specialized agency of the UN.lSponsors conferences for development o
54、f new IP rights agreements.lFacilitates the transfer of technology among developing countries and provides arbitration. 9-33Pearson Education, Inc publishing as Prentice Hall 2009Council for Trade-Related Aspects of Intellectual Property RightslOrgan of the WTO responsible for the administering the
55、TRIPS Agreement.lResponsible for monitoring compliance of TRIPS by members and helping members consult with each other on intellectual property rights.lAssists members in settling disputes.lConsults with the WIPO.9-34Pearson Education, Inc publishing as Prentice Hall 2009Intellectual Property Treati
56、es:TRIPSlMultilateral treaties regulate most matters relating to intellectual property rights.lTRIPS Agreement is an annex to the agreement establishing the WTO. All WTO members are automatically members of the TRIPS Agreement.lPurpose of TRIPS is to create a multilateral and comprehensive set of ri
57、ghts and obligations governing the international trade in intellectual property.9-35Pearson Education, Inc publishing as Prentice Hall 2009TRIPS ProtectionslEstablishes common minimum of protection for intellectual property rights within WTO states:1.Requires WTO members to observe provisions of the
58、 most important multilateral IP treaties.2.Creates obligations to fills in gaps left by other conventions.3.Establishes criteria for effective and appropriate enforcement of IP rights and for the prevention and settlement of disputes.4.Creates transitional arrangements for developing countries to gi
59、ve them time to comply.5.Extends the basic principles of GATT to the field of international IP rights.8-36Pearson Education, Inc publishing as Prentice Hall 2009Artistic Property Agreements: Berne ConventionlBerne Convention requires member states to establish common minimum rules to protect the pec
60、uniary and moral rights of authors without requiring compliance with particular formalities.lFour principles underlie members obligations:1.National treatment2.Nonconditional protection3.Protection independent of protection in the country of origin4.Common rules principle9-37Pearson Education, Inc p
61、ublishing as Prentice Hall 2009Artistic Property Agreements: Rome ConventionlThe International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (Rome Convention) prohibits the unauthorized recording of live performances, the unauthorized reproducti
62、on of recordings, and the unauthorized recording or rebroadcasting of broadcasts. lBroadcaster making a public communication of an authorized phonogram must pay the producer or artist an equitable payment.8-38Pearson Education, Inc publishing as Prentice Hall 2009Artistic Property Agreements lThe Ph
63、onogram Piracy Convention requires member states to protect producers of phonograms from the unauthorized reproduction of their works for a period of not less than 20 years.lThe Satellite Transmission Convention requires member states to prevent the unauthorized transmission of electronic communicat
64、ions by satellite from their territory.lThe WIPO Copyright Treaty requires member states to extend the provisions of the Berne Convention to computer programs and databases. 9-39Pearson Education, Inc publishing as Prentice Hall 2009Industrial Property Agreements:Paris ConventionlThe International C
65、onvention for the Protection of Industrial Property (Paris Convention) requires member states to provide national treatment, right of priority, and common minimum rules to protect owners of industrial property rights. lThe rule of priority gives an applicant for a patent who has filed for protection
66、 in one member country a grace period of 12 months in which to file in another member state. 9-40Pearson Education, Inc publishing as Prentice Hall 2009Industrial Property AgreementslThe Washington Treaty requires members to provide national treatment and common minimum rules to protect owners of in
67、tegrated circuits.lThe Patent Cooperation Treaty establishes an international mechanism that allows inventors to make a single application for patent protection that is equivalent to making a filing in all states.lThe Madrid Agreement for the Repression of False or Deceptive Indications of Sources o
68、f Goods requires member states to deny importation to goods bearing false or misleading indications as to their source. 9-41Pearson Education, Inc publishing as Prentice Hall 2009The International Transfer of Intellectual Property lFive ways in which IP rights are transferred:1.Owner may work the pr
69、operty rights abroad,2.Owner may transfer or assign rights to another,3.Owner may license another to work them,4.Owner may establish a franchise, or5.A government may grant a compulsory license so that a third party may exploit them. 9-42Pearson Education, Inc publishing as Prentice Hall 2009License
70、 and FranchiselA license is the authority granted by the owner of an intellectual property to another allowing the latter the right to use it in some limited way.lA franchise is a special license that requires the franchisee to work the licensed property under the supervision and control of the fran
71、chisor.lThree types of franchises that have developed over time are the dealership, the chain-style business, and the manufacturing or processing plant.9-43Pearson Education, Inc publishing as Prentice Hall 2009Types of Franchises1.Distributorship manufacturer licenses dealer to sell its products. 2
72、.Chain-style business franchisee operates under the franchisors trade name and is identified as part of the franchisors business.3.Manufacturing or processing plant a franchise in which the franchisee sells products it manufactures from a formula or from ingredients provided by the franchisor.9-44Pe
73、arson Education, Inc publishing as Prentice Hall 2009Licensing RegulationslPatents, trademarks, and copyrights create monopolies that run contrary to unfair competition laws. The rights of the grant holders are strictly construed and limited to the narrow confines of the grant.lAny attempt to go bey
74、ond the scope of the grant is either ineffective or illegal.lTRIPS recognizes the rights of states to limit IP rights and place conditions upon the grants. lTransfer-of-technology codes and anti-monopoly statutes (Sherman Antitrust Act) protect the public against the adverse effects of IP rights. 9-
75、45Pearson Education, Inc publishing as Prentice Hall 2009Territorial RestrictionslThe rights granted under a patent, trademark, or copyright license may be restricted to a territory. However, once a good made or sold under license is in circulation, the licensor has no further right to control its d
76、istribution. This is the exhaustion of rights doctrine.lWhen the separate IP laws of EU member states come into conflict with the goal of establishing the free movement of goods, the EU law will govern.lThe monopoly created by IP rights extends only to the right to manufacture the protected product
77、and put it into circulation for the first time. A third party may then sell the product in other markets. 9-46Pearson Education, Inc publishing as Prentice Hall 2009Case 9-5: Consten and Grundig v. Commission European CommunitylAgreement between German manufacturer (Grundig) and French retailer had
78、restrictions on importing and selling Grundig products.lThe court weighed the contract provisions against the EU principle of free movement of goods and found that the restrictions violated the EU treaty.lTreaty of Rome stated that any agreement that resulted in the “prevention, restriction, or dist
79、ortion of competition within the common market” was illegal. Contracts were found illegal. 9-47Pearson Education, Inc publishing as Prentice Hall 2009IP and Trade RestrictionslThe European Court of Justice created the common origin doctrine to promote the free movement of goods at the expense of tra
80、demark owners. This provides that owners of the same IP right who acquired it from a common predecessor cannot restrict each other from using the right.lIf, however, the protected products are manufactured outside the EU, they may not be imported into the EU without the express consent of the EU int
81、ellectual property owner. lU.S. courts have dealt with parallel imports of protected products. A problem known as gray marketing. 9-48Pearson Education, Inc publishing as Prentice Hall 2009Export RestrictionslMost export restrictions are prohibited. Some countries allow them where the licensor own I
82、P rights and the local laws allow the licensor to restrict foreign imports.lIn other countries, restricts will be allowed if the limitation applies to a territory where the licensor is manufacturing or distributing the restricted goods and the licensor has granted an exclusive license to a third par
83、ty to manufacture or distribute the goods. 8-49Pearson Education, Inc publishing as Prentice Hall 2009Export Restrictions in the USlExport restriction agreements between competitors, known as horizontal competition agreements, are per se violation of the Sherman Antitrust Act.lAgreements between a s
84、eller and a buyer, known as vertical competition agreements, are not bad per se and will be tested by the rule of reason. 9-50Pearson Education, Inc publishing as Prentice Hall 2009CartelslA cartel is a combination of independent business firms organized to regulate the production, pricing, and mark
85、eting of goods by its members.lTypes of cartels include:Cross-licensing agreement an agreement to exchange licenses.Patent pool an agreement to chare patents and other technology.Multiple licensing agreement a contract for the licensing of industrial property rights to two or more licensees. 9-51Pea
86、rson Education, Inc publishing as Prentice Hall 2009CartelslIn the US, cross-licensing and patent pooling are not unlawful unless they are used to: Divide up territories among competitorsExclude others from competingRestrain tradelThe bottleneck principle may require the participants in an industry-
87、wide patent pool to grant reasonable access to the pool to any firm wishing to compete so that no firm will be disadvantaged. 9-52Pearson Education, Inc publishing as Prentice Hall 2009Exclusive LicenseslSeveral countries allow the owner of a patent, trademark, or copyright to grant either an exclus
88、ive or a nonexclusive license.lA license may confer:Sole rights to the exclusion of all others, including the licensorExclusive rights preventing everyone except the licensor from competingNonexclusive rights which allow the licensor to grant other licenses 9-53Pearson Education, Inc publishing as P
89、rentice Hall 2009Case 9-6Ransome-Kuti v. Phonogram, Ltd.lIssue: Whether the license granted to a Nigerian company to reproduce the plaintiffs copyrighted musical work throughout Africa for three years also gave the licensee the right to subcontract the rights to produce records in Ghana to another f
90、irm.lHeld: Since the contract defined the license in this case to be one that extended to “successors and assigns,” reassignment of the right to produce records to another company was allowed.lThis case points out the importance of defining important terms carefully in a contract.9-54Pearson Educati
91、on, Inc publishing as Prentice Hall 2009Sales and Distribution ArrangementslSales or distribution arrangements limit a licensees freedom to organize its distribution system independently of the licensor.lThree approaches by different countries:Developing countries (e.g., Brazil) prohibits any interf
92、erence by the licensor.Developing/developed countries (e.g., Japan, Mexico) prohibit only those provisions that give the licensor exclusive distribution rights.Generally developed countries (e.g., Germany, US) only prohibit those exclusive sales arrangements that tend to monopolize markets.9-55Pears
93、on Education, Inc publishing as Prentice Hall 2009Price-Fixing and Noncompetition Clauses lPrice-fixing clause requires a licensee to sell products at a price specified by the licensor. It may specify either maximum or minimum prices. Most countries prohibit all forms of price-fixing.lNoncompetition
94、 clauses forbid a licensee from entering into agreements to acquire or distribute technologies or products that compete with ones furnished by the licensor. Noncompetition clauses are forbidden by all countries.9-56Pearson Education, Inc publishing as Prentice Hall 2009Challenges to Validity and Tyi
95、ng ClauseslNo-challenge clauses forbid a licensee from challenging the validity of the statutory right granted by the licensor. Only a few countries (e.g., Germany) permit them.lA tying clause is a provision requiring a licensee to acquire or use, apart from the technology wanted, goods (raw materia
96、ls or machines) or personnel designated by the licensor. They are illegal in most countries. 9-57Pearson Education, Inc publishing as Prentice Hall 2009Quantity and Field-of-Use RestrictionslCountries regulate licensing arrangements with quantity and field-of-use restrictions in three ways.Developin
97、g countries with transfer-of-technology codes regard these limitations as illegal.A second group of countries (US, Japan, EU) regard these restrictions as implicit elements in the statutory rights of a licensor.A third approach, found in Germany, allows restrictions on both statutory and nonstatutor
98、y rights, including limitations on the use of know-how and trade secrets. 9-58Pearson Education, Inc publishing as Prentice Hall 2009Quality ControlslA quality control clause is a provision requiring a licensee to meet quality standards or operate under quality controls set by the licensor. They are
99、 uniformly accepted in all countries.lThese clauses are justified where the trademark of the licensor is being applied to a product manufactured or distributed by the licensee and where they are imposed for the purpose of avoiding product liability.9-59Pearson Education, Inc publishing as Prentice H
100、all 2009Grant-Back ProvisionslA grant-back provision is an agreement that a technology licensee will transfer to the licensor any improvements, inventions, or know-how it acquires while using the technology.lMost countries prohibit grant-back provisions that unilaterally require the licensee to tran
101、sfer exclusive rights to the licensor. They do not prohibit reciprocal provisions.lThe US allows a unilateral provision so long as it does not have an anticompetitive effect. 9-60Pearson Education, Inc publishing as Prentice Hall 2009Compulsory LicenseslA compulsory license is the grant, by state de
102、cree, of a license to use a statutory right when the owner has failed to work it.lThe International Convention for the Protection of Industrial Property and TRIPS both allow for compulsory licenses.lAfrican states have advocated compulsory licenses for drugs to treat AIDS. 9-61Pearson Education, Inc
103、 publishing as Prentice Hall 2009All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Printed in the United States of America.
