[Ecommerce] Re: [Ip-health] Contracts that restrain competition or impede the transfer of technology
-- proposed Hague Convention provision
Jeff Williams
jwkckid1@ix.netcom.com
Wed Mar 31 09:47:02 2004
James, Jeff and all,
I and our members share some of the concerns regarding the sweeping
changes being proposed in international contract law ongoing in
discussion
in the Hague which you, Jeff are heading up in behalf of the american
consumers. I would also like to express in behalf of our members whom
have contacted DOS and DOJ on many occasions via myself, that it would
also appear that the EU would seek as Jamie points out to ""carve out"
that would automatically give the European courts exclusive rights on
all community intellectual property rights cases, including not only
validity
but also infringement or scope of rights/claims. "" This is clearly an
attempt at a less than fair or less than revenue neutral advantage for
the EU vs any other nation, including the US. As and american, I
personally find this unexceptable and hope your opinion or the
US position has not changed in your mind sense your testimony
to congress, see:
http://energycommerce.house.gov/107/hearings/05222001Hearing231/Kovar347.htm
If your opinion has changed sense this testimony, I fear a backlash from
small and medium business interests with a toe hold in
internationalizing
in process or in mind will adversely effect reversing or stemming
outsourcing
and thereby demising job growth in an election year that promises to be
closely contested....
James Love wrote:
> To: Jeffrey Kovar
> US Department of State
> Head of US Delegation on the proposed
> Hague Convention on Jurisdiction and
> Enforcement of Foreign Judgments
>
> From: James Love, CPTech
> Date: 30 March 2004
>
> Re: Contracts that restrain competition or impede
> the transfer of technology
>
> ---------------------------------
> Jeff, as you know, CPTech is concerned that the proposed Hague
> Convention on Jurisdiction has been repositioned to introduce sweeping
> changes in international contract law, making nearly all contractual
> choice of court provisions automatic and enforceable, undermining
> national discretion on a number of sensitive and controversial policy
> issues. This, combined with the very strong provisions regarding
> enforcement of foreign judgments is a recipe for a new round of bold
> forum shopping.
>
> In the current draft, all judgments regarding contract and license
> disputes over intellectual property would have very strong enforcement
> measures. The treaty would "salami" slice certain aspects of
> intellectual property disputes, so that litigation over validity of all
> non-copyright registered rights (patents, trademarks, plant breeder
> rights, suit generis database rights, rights in traditional knowledge,
> etc) would always be held in the country of registration, unless they
> were "incidental" to the main litigation, but litigation over
> infringement, the scope of claims, the fairness of the contracts and
> other provisions would be in the foreign courts, with very strong
> enforcement measures for the foreign judgments.
>
> The European Union yesterday asked for a special "carve out" that would
> automatically give the European courts exclusive rights on all community
> intellectual property rights cases, including not only validity but also
> infringement or scope of rights/claims. But for the rest of the world,
> the Hague Convention changes would be very important.
>
> We has asked for a number of changes in the Convention, including for
> example our request in a separate note that the Convention exclude
> matters involving parallel trade or the exhaustion of rights. The
> following is an elaboration of our request at yesterday's negotiation
> that the Convention recognize the problme of anti-competitive practices
> in contractual licenses. Here, as yesterday, I draw your attention to
> Article 40 of the TRIPS, which is attached below. It says that [WTO]
> "Members agree that some licensing practices or conditions pertaining to
> intellectual property rights which restrain competition may have adverse
> effects on trade and may impede the transfer and dissemination of
> technology," and further, that Nothing in this Agreement shall prevent
> Members from specifying in their legislation licensing practices or
> conditions that may in particular cases constitute an abuse of
> intellectual property rights having an adverse effect on competition in
> the relevant market."
>
> We ask that the proposed Convention recognize this issue, and provide
> that in cases where a member determines that licensing practices
> "constitute an abuse of intellectual property rights having an adverse
> effect on competition in the relevant market," the Convention would not
> apply. This could be given effect by modifying Article 1, paragraph 3,
> g), to read as follows:
>
> 1.3 g) anti-trust or competition matters, including but not limited to
> cases where a member country has determined that a licensing practice is
> an abuse of intellectual property rights having an adverse effect on
> competition."
>
> I think it is important that the Convention seek balance to protect
> consumer interests, as is the case for the TRIPS. Thank you for
> considering this proposal. James Love, CPTech
>
> -----------------
>
> SECTION 8: CONTROL OF ANTI-COMPETITIVE PRACTICES
> IN CONTRACTUAL LICENCES
>
> Article 40
>
> 1. Members agree that some licensing practices or conditions pertaining
> to intellectual property rights which restrain competition may have
> adverse effects on trade and may impede the transfer and dissemination
> of technology.
>
> 2. Nothing in this Agreement shall prevent Members from specifying in
> their legislation licensing practices or conditions that may in
> particular cases constitute an abuse of intellectual property rights
> having an adverse effect on competition in the relevant market. As
> provided above, a Member may adopt, consistently with the other
> provisions of this Agreement, appropriate measures to prevent or control
> such practices, which may include for example exclusive grantback
> conditions, conditions preventing challenges to validity and coercive
> package licensing, in the light of the relevant laws and regulations of
> that Member.
>
> 3. Each Member shall enter, upon request, into consultations with any
> other Member which has cause to believe that an intellectual property
> right owner that is a national or domiciliary of the Member to which the
> request for consultations has been addressed is undertaking practices in
> violation of the requesting Member's laws and regulations on the subject
> matter of this Section, and which wishes to secure compliance with such
> legislation, without prejudice to any action under the law and to the
> full freedom of an ultimate decision of either Member. The Member
> addressed shall accord full and sympathetic consideration to, and shall
> afford adequate opportunity for, consultations with the requesting
> Member, and shall cooperate through supply of publicly available
> non-confidential information of relevance to the matter in question and
> of other information available to the Member, subject to domestic law
> and to the conclusion of mutually satisfactory agreements concerning the
> safeguarding of its confidentiality by the requesting Member.
>
> 4. A Member whose nationals or domiciliaries are subject to proceedings
> in another Member concerning alleged violation of that other Member's
> laws and regulations on the subject matter of this Section shall, upon
> request, be granted an opportunity for consultations by the other Member
> under the same conditions as those foreseen in paragraph 3.
>
> --
> James Love, Director, Consumer Project on Technology
> http://www.cptech.org, mailto:james.love@cptech.org
> tel. +1.202.387.8030, mobile +1.202.361.3040
>
> _______________________________________________
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> Ip-health@lists.essential.org
> http://lists.essential.org/mailman/listinfo/ip-health
Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Be precise in the use of words and expect precision from others" -
Pierre Abelard
"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
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