The purpose of this thesis is to describe and analyse the significance of economic thinking and arguments in the treatment of licence agreements in EC competition law. A central question is to what degree the concept of competition in EC law reflects an economically realistic approach to competition. The study also investigates to what degree the economic functioning of intellectual property is considered in competition regulation and how much the economic functioning of the licence agreement is considered. The investigation mainly consists of a comparative analysis of EC competition law and American antitrust law concerning the economic arguments and their importance. The treatment of territorial restrictions, field of use restrictions, quantity clauses, tie-outs, tie-ins, grant back, no-challenge clauses and price restrictions are of special interest here. This study shows that an economically realistic view of competition has influenced current EC competition law, especially in the Technology Transfer Block Exemption Regulation (TTBER). Exceptions from this development in the EC law are mainly due to the goal of integration of the common market. Territorial restrictions are strictly regulated in the TTBER even when the parties’ market shares are below the market thresholds defined in the regulation. The function of intellectual property rights are not much considered in EC competition law but there are general remarks about the economic functioning of patents in the Guidelines for the TTBER. However, it is difficult to find evidence for economic reasoning about patents in the formation of concrete rules. On the contrary, patents are weakened by the widened concept of exhaustion presented in the Guidelines. The economic functioning of the licence agreement is considered in the rules of TTBER and the economic arguments for clauses which create incentives for making investments or give the possibility of control are acknowledged. However, the free riding argument has a weak position when applied to territorial restrictions, which are more formalistically regulated. The EC competition law has become more similar to American antitrust law. The decisive difference consists in the judicial treatment of territorial restrictions, where the goal of integration is still of central importance in EC law.

In the search for companies to distinguish themselves from the mass, so called non-traditional trade marks have become increasingly popular, and in particular colour marks. It is now clear that abstract colour marks can be registered as trade marks, and the number of registered colour marks has increased considerably in recent years. However, it remains a lot more uncertain, mainly due to lack of case law, what the extent of colour marks’ scope of protection is. Are colours actually worth protecting? The purpose of this thesis is to examine the scope of protection of registered abstract colour marks from an EU perspective. Through this examination it will also be established whether colours are worth protecting. The essential function of trade marks is to indicate the origin of products. Signs that are capable of being represented graphically and capable of distinguishing goods and services from one undertaking from those of other undertakings can be registered as trade marks. Colours can fulfil these criteria in certain circumstances, however, colours can practically never have distinctive character per se. Instead, they must have acquired distinctive character through use. Since it is quite difficult to register colour marks, a colour mark proprietor should be prepared to have the validity of his trade mark challenged if he issues proceedings for infringement. There are a few national cases from EU Member States that have concerned infringement of colour marks, and in all of these the plaintiff was successful in claiming infringement. Through the decisions in these cases, general legal principles and statements made in literature, the scope of protection of colour marks has been examined. Infringement of a colour mark occurs in three different situations: where there is likelihood of confusion, where there is double identity and where there is dilution of a trade mark with a reputation. Some of the most important findings are that confusingly similar colours include adjacent shades, but in order to prove likelihood of confusion, the infringing colour must probably be perceived by the public as an indication of origin and other signs that appear together with the colour must probably be taken into account, which limits the scope of protection to some extent. However, since colour marks must almost always have acquired distinctive character through use, consumers are used to perceiving that colour as a trade mark in relation to those types of goods/services, and are therefore more likely to do so also when the colour is used by the third party. Furthermore, there have to be an individual assessment in each case in order to determine whether surrounding signs exclude a likelihood of confusion, where all factors should be considered, including the distinctiveness of the colour mark and how clear and prominent the other signs are. In situations of double identity, the infringing sign does not have to be used as a trade mark, which is advantageous for colour mark owners. Furthermore, identical colours can possibly include other shades if they are so similar that the difference is barely perceptible in a direct comparison. Colour marks can often qualify as trade marks with a reputation, since the assessment of whether trade marks have a reputation is similar to the assessment of whether trade marks have acquired distinctive character through use. Trade marks with a reputation has an extended protection meaning that if a third party uses a sign that is identical or similar to a trade mark with a reputation, and that use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark, then that use constitutes infringement. This applies both in relation to identical, similar and dissimilar products, however, it will probably only apply in relation to identical or similar products when it comes to colour marks, due to the extensive use of colours in the market. The extended protection could be relevant in particular in situations where likelihood of confusion cannot be proven, because the public does not perceive the infringing sign as a trade mark or because of surrounding prominent signs. This examination shows that the scope of protection of colour marks is not great, it has some weaknesses. However, it is definitely not worthless either, which clearly shows in the fact that the plaintiffs were successful in claiming infringement in all of the infringement cases. By registering a colour as a trade mark, a company can to some extent stop others from using the same or similar colour, and it will also most likely have a discouraging effect. However, some carefulness should still be applied in relation to colour marks, since this is still a very new phenomenon and additional case law can take another direction. But considering how the situation looks today, colours are worth protecting as trade marks.

近年來，國內營業秘密相關侵害問題爭迭不休，使國內產業之營業秘密權人危機意識提高，因為營業秘密本是企業取得產業競爭力的關鍵要素，若遭到洩漏，影響範圍除自身公司外，甚至遍及整個產業鏈，都將遭受動盪，因此為使營業秘密能受到更有效的保護，期能嚇阻侵害營業秘密之行為，立法院於2013年1月11日修訂完成營業秘密法，並於同月30日公布之，增加刑事與民事責任，自始營業秘密之保障將更為周全，因此如能建立完善的智慧財產管理，加上營業秘密法賦予營業秘密權人之保障，將能提升產業競爭力。然要受到營業秘密法律之保護，需符合營業秘密法規範之三大要件，而其中要件之一「合理保密之措施」究為所指，綜覽學界與實務之見解，尚未有一致之看法，除相關「完善」之保密措施論述外，並無明確闡釋「合理」此一要件之見解，但對國內中小企業而言，建立完善之合理保密措施的成本高，非其所能負擔。 因而本文嘗試整理國內與美國學說之見解，並進一步蒐集我國法院營業秘密法判決，加以歸納統整，期從中找出「合理」保密措施之參考依據，以作為我國企業所能參考之依據。詳言之，係以國內司法判決之實證研究為主，並加以美國法制體系及相關實務判決作為比較法研究之基礎，嘗試能從中統整出「合理」之保密措施，讓企業得以在成本規劃與洩密風險承擔此二者間，尋找一平衡點，方能使國內各企業在能力所及範圍內，亦達保護公司營業秘密之目的，維持整體產業公平競爭之秩序。 / A trade secret is a form of intellectual property that gives the firm who owns it an advantage over its competitors as long as the firm manages to keep it. Recently, Trade secret infringements occur more than thought. For example, employees thieve the firm’s secret and intend to sell it to competitor., therefore the Legislative Yuan passed the amendments to the completion of the Trade Secrets Act On January 11, 2013, and was released on the 30th of the same month, the proposal has increased in criminal and civil liability, the Legislative Yuan expect the amendments have more comprehensive protection of trade secrets.A secret.under Trade secrect protection have to satisfy three requirements, and one of the requirement is “reasonable measures”, therefore this paper attempts to sort out the domestic and U.S. doctrine of insights and further to collect court judgment in Taiwan, try to be summarized integration "reasonable" security measures. Expect to figure out what is common definition of “reasonable measures”,as the basis for Taiwan’s enterprises can reference. In particular, empirical studies of domestic judicial decisions based, and the U.S. legal system and related practices judgment as the basis for the study of comparative law, to try from integration in a "reasonable" measures, to enable enterprises to cost planning bear both the risk of disclosure, to find a balance point, can the domestic enterprises in the abilities within up to protect the company's trade secrets, to maintain the overall industry fair competition order.

University of Macau / Faculty of Law

University of Macau / Faculty of Law

A new method for making software is stealthily gaining ground in the computer industry, offering a promise of better, cheaper software and the empowerment of the user. The open source movement could revolutionize the software industry...if it succeeds. Open source means software that you are allowed to copy, modify, and give to friends. Source code , the lists of instructions which tell computers how to run, is readily available, allowing you to look inside the workings of a program and change it to suit your needs. A group of programmers, companies, users, and activists have gathered in support of this empowering technology, seeking to persuade businesses and users that open source is the way to go. However, open source faces stiff challenges. The economic basis for the software industry is to charge users by the copy when they buy software. Copying and modification are illegal. The industry and its customers are so mired in this worldview that the idea of giving out a program's "recipe," along with a license to change or copy it at will, seems preposterous. Powerful players in the software industry, such as Microsoft, see open source as a threat to their bottom line, and have devoted their energies to discrediting and marginalizing the movement. Beginning from the assumption that cheap, reliable software that empowers the user is a good thing, this thesis looks at the claims made by advocates about the benefits of open source. I explore how the advocates make their case to the business world, the public, and government. I also look at ways in which the government could help bring about an open source revolution, using the policy tools of procurement, research funding, standards enforcement, and antitrust law. I conclude that programmers and public interest lobbyists must join forces to carry this revolution forward, and that the time for action is now, while Microsoft is on trial.

Empirischen Studien zufolge können Patente sich positiv auf den Unternehmenserfolg auswirken. Allerdings wirkt dieser Effekt nicht automatisch, sondern Unternehmen müssen sich um den Aufbau und die gesteuerte Weiterentwicklung eines nachhaltigen und wertvollen Patentportfolios bemühen. Bisher ist jedoch nicht wissenschaftlich untersucht worden, welche Maßnahmen Unternehmen ergreifen können, um die unternehmensinternen Vorraussetzungen für eine erfolgreiche Steuerung von Patentaktivitäten zu schaffen. Um diese betrieblichen Faktoren zu identifizieren und deren Relevanz zu quantifizieren, wurden 2005 in einer breiten empirischen Untersuchung die aktiven Patentanmelder im deutschsprachigen Raum (über 1.000 Unternehmen) mit Hilfe eines standardisierten Fragebogens befragt. Auf der Basis von 325 auswertbaren Fragebögen (Ausschöpfungsquote 36,8 %) konnten zum einen Ergebnisse zum aktuellen Aufgabenspektrum der Patentabteilungen sowie zu deren organisatorischen und personellen Strukturen gewonnen werden. Ebenfalls wurde in dieser Status quo-Analyse der Bekanntheits- und Implementierungsgrad von Methoden und Systemen (z. B. Patentbewertungsmethoden, Patent-IT-Systeme) beleuchtet. Zum anderen wurden die betrieblichen Faktoren herausgestellt, auf die technologieorientierte Unternehmen achten sollten, um das Fundament für eine erfolgreiche Patentsteuerung zu legen. / Empirical studies have shown that patents can have a positive effect on corporate success. However, this effect does not occur by itself. Companies have to make an effort to create and to develop a sustainable patent portfolio. So far, no academic studies have investigated into which actions a company can take to establish the internal conditions for successful patent management. To identify and to quantify the relevance of these internal factors, a study was conducted using a standardized written questionnaire with more than 1,000 patent-oriented companies in the German-speaking countries (Germany, Austria, Switzerland, Liechtenstein). In total, 325 valid questionnaires were included in the analyses; this corresponds to an above-average response rate of 36.8 %. These analyses revealed insights into the current task profile of patent departments and their organizational and personnel structures. This status quo analysis also included the investigation into the awareness and implementation level of used methods and systems (e. g. patent evaluation methods, patent IT systems). Furthermore, the study could expose the internal determinants, which technology-oriented companies should focus on to ensure a successful patent management.

Internettjänsten The Pirate Bay fälldes av Svea hovrätt den 26 november 2010 för medhjälp till brott mot URL med motiveringen att denna tjänst främjat fildelning av upphovsrättsligt skyddat material utan upphovsmännens samtycke. Bestämmelsen i 23 kap 4 § 2 st. BrB lyder, ”ansvar som i denna balk är föreskrivet för viss gärning skall ådömas inte bara den som utfört gärningen utan även annan som främjat denna med råd eller dåd. Detsamma skall gälla beträffande i annan lag eller författning straffbelagd gärning, för vilken fängelse är föreskrivet.” I dagsläget finns ett flertal tjänster av liknande karaktär såsom söktjänsten Google och videotjänsten Youtube. Dessa har inte prövats av svensk rätt men åtnjuter skydd av E-handelslagen trots att de i praktiken kan anses fungera som The Pirate Bay. Skillnaden är att dessa aktivt handlar för att förebygga förekomsten av upphovsrättsligt skyddat material utan upphovsmännens samtycke. Trots detta förekommer en betydande mängd upphovsrättsligt skyddat material som med stor sannolikhet inte gjorts tillgängligt för allmänheten med upphovsmännens samtycke. Dessa aktörer kan teoretiskt sätt upprätta en policy mot spridning av olovligt material som är tillräcklig för att väga upp den skadan som tillförs upphovsmännen, på så sätt åtnjuter de titeln informationssamhällets tjänst, de vill säga samhällsnyttan väger över den tillförda skadan enligt E-handelslagen. Hovrättens deldom i Pirate Bay-målet är nu en milstolpe för dessa aktörer avseende tolkningen av medhjälpsbegreppet i BrB, men det är ändock av vikt att HD samt EU-domstolen klargör den diffusa gränsen mellan definitionen informationssamhällets tjänst och tolkningen av ordalydelsen i 23 kap 4 § 2 st. BrB (medhjälpsbegreppet). / The Pirate Bay was convicted by the Svea Court of Appeals in November 26, 2010 for aiding in crime against Swedish Copyright Law on the grounds that this service promoted the sharing of copyright material without the authors’ consent. The wording in chapter 23, paragraph 4, part 2 of the Swedish Criminal Code reads, "responsibilities in this section are prescribed for a specific act, it shall be imposed not only on those who carried out the deed, but also the one that facilitated this by giving advice or carrying out deeds. The same shall apply in relation to another law or constitutional criminal offense for which imprisonment is prescribed." Nowadays there are several services of similar nature such as the search engine Google and the video streaming service Youtube. These services have not been tested by Swedish law, since they are protected by the Swedish E-Commerce Law. Google and Youtube actively take actions to prevent the occurrence of copyrighted material without the authors' consent. However, there is a considerable amount of copyright material, which most probably has been made available to the public without the authors' consent. These companies can in theory establish a policy against the proliferation of unauthorized materials in an amount sufficient to offset the damage which affects the copyright owners, but still enjoy the title of information society services in the E-Commerce Law, since the social benefits are larger than the caused injury. The Swedish Court of Appeal's judgement is now a landmark for similar services when it comes to the interpretation of aiding crime against the Swedish copyright law. It is nevertheless important that the Supreme Court of Sweden and the EU-court defines the cloudy boundary between the definition information society services and the interpretation of the wording in the 23 chapter 4 § 2 part, Swedish penal code.

<p>The purpose of this thesis is to explore what software evaluation methods are currently available that can assist organizations and companies in procuring a software solution for some particular task or purpose for a specific type of business. The thesis is based on a real-world scenario where a company, Volvo Technology Corporation (VTEC), is in the process of selecting a new intellectual property management system for their patent department. For them to make an informed decision as to which system to choose, an evaluation of market alternatives needs to be done. First, a set of software evaluation methods and techniques are chosen for further evaluation. An organizational study, by means of interviews where questions are based on the ISO 9126-1 Software quality model, is then conducted, eliciting user opinions about the current system and what improvements a future system should have. The candidate methods are then evaluated based on the results from the organizational study and other pertinent factors in order to reach a conclusion as to which method is best suited for this selection problem. The Analytical Hierarchy Process (AHP) is deemed the best choice.</p>

<p>In the search for companies to distinguish themselves from the mass, so called non-traditional trade marks have become increasingly popular, and in particular colour marks. It is now clear that abstract colour marks can be registered as trade marks, and the number of registered colour marks has increased considerably in recent years. However, it remains a lot more uncertain, mainly due to lack of case law, what the extent of colour marks’ scope of protection is. Are colours actually worth protecting? The purpose of this thesis is to examine the scope of protection of registered abstract colour marks from an EU perspective. Through this examination it will also be established whether colours are worth protecting.</p><p>The essential function of trade marks is to indicate the origin of products. Signs that are capable of being represented graphically and capable of distinguishing goods and services from one undertaking from those of other undertakings can be registered as trade marks. Colours can fulfil these criteria in certain circumstances, however, colours can practically never have distinctive character per se. Instead, they must have acquired distinctive character through use. Since it is quite difficult to register colour marks, a colour mark proprietor should be prepared to have the validity of his trade mark challenged if he issues proceedings for infringement.</p><p>There are a few national cases from EU Member States that have concerned infringement of colour marks, and in all of these the plaintiff was successful in claiming infringement. Through the decisions in these cases, general legal principles and statements made in literature, the scope of protection of colour marks has been examined. Infringement of a colour mark occurs in three different situations: where there is likelihood of confusion, where there is double identity and where there is dilution of a trade mark with a reputation.</p><p>Some of the most important findings are that confusingly similar colours include adjacent shades, but in order to prove likelihood of confusion, the infringing colour must probably be perceived by the public as an indication of origin and other signs that appear together with the colour must probably be taken into account, which limits the scope of protection to some extent. However, since colour marks must almost always have acquired distinctive character through use, consumers are used to perceiving that colour as a trade mark in relation to those types of goods/services, and are therefore more likely to do so also when the colour is used by the third party. Furthermore, there have to be an individual assessment in each case in order to determine whether surrounding signs exclude a likelihood of confusion, where all factors should be considered, including the distinctiveness of the colour mark and how clear and prominent the other signs are.</p><p>In situations of double identity, the infringing sign does not have to be used as a trade mark, which is advantageous for colour mark owners. Furthermore, identical colours can possibly include other shades if they are so similar that the difference is barely perceptible in a direct comparison.</p><p>Colour marks can often qualify as trade marks with a reputation, since the assessment of whether trade marks have a reputation is similar to the assessment of whether trade marks have acquired distinctive character through use. Trade marks with a reputation has an extended protection meaning that if a third party uses a sign that is identical or similar to a trade mark with a reputation, and that use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark, then that use constitutes infringement. This applies both in relation to identical, similar and dissimilar products, however, it will probably only apply in relation to identical or similar products when it comes to colour marks, due to the extensive use of colours in the market. The extended protection could be relevant in particular in situations where likelihood of confusion cannot be proven, because the public does not perceive the infringing sign as a trade mark or because of surrounding prominent signs.</p><p>This examination shows that the scope of protection of colour marks is not great, it has some weaknesses. However, it is definitely not worthless either, which clearly shows in the fact that the plaintiffs were successful in claiming infringement in all of the infringement cases. By registering a colour as a trade mark, a company can to some extent stop others from using the same or similar colour, and it will also most likely have a discouraging effect. However, some carefulness should still be applied in relation to colour marks, since this is still a very new phenomenon and additional case law can take another direction. But considering how the situation looks today, colours are worth protecting as trade marks.</p>