Art. 1 - Definitions - Regulation - 772-2004

Article 1

Definitions

1. For the purposes of this Regulation, the following definitions shall apply:
(a) ‘agreement’ means an agreement, a decision of an association of undertakings or a concerted practice;
(b) ‘technology transfer agreement’ means a patent licensing agreement, a know-how licensing agreement, a software copyright licensing agreement or a mixed patent, knowhow or software copyright licensing agreement, including any such agreement containing provisions which relate to the sale and purchase of products or which relate to the licensing of other intellectual property rights or the assignment of intellectual property rights, provided that those provisions do not constitute the primary object of the agreement and are directly related to the production of the contract products; assignments of patents, know-how, software copyright or a combination thereof where part of the risk associated with the exploitation of the technology remains with the assignor, in particular where the sum payable in consideration of the assignment is dependent on the turnover obtained by the assignee in respect of products produced with the assigned technology, the quantity of such products produced or the number of operations carried out employing the technology, shall also be deemed to be technology transfer agreements;
(c) ‘reciprocal agreement’ means a technology transfer agreement where two undertakings grant each other, in the same or separate contracts, a patent licence, a know-how licence, a software copyright licence or a mixed patent, know-how or software copyright licence and where these licences concern competing technologies or can be used for the production of competing products;
(d) ‘non-reciprocal agreement’ means a technology transfer agreement where one undertaking grants another undertaking a patent licence, a know-how licence, a software copyright licence or a mixed patent, know-how or software copyright licence, or where two undertakings grant each other such a licence but where these licences do not concern competing technologies and cannot be used for the production of competing products;
(e) ‘product’ means a good or a service, including both intermediary goods and services and final goods and services;
(f) ‘contract products’ means products produced with the licensed technology;
(g) ‘intellectual property rights’ includes industrial property rights, know-how, copyright and neighbouring rights;
(h) ‘patents’ means patents, patent applications, utility models, applications for registration of utility models, designs, topographies of semiconductor products, supplementary protection certificates for medicinal products or other products for which such supplementary protection certificates may be obtained and plant breeder's certificates;
(l) ‘know-how’ means a package of non-patented practical information, resulting from experience and testing, which is:
(l) secret, that is to say, not generally known or easily accessible,
(ii) substantial, that is to say, significant and useful for the production of the contract products, and
(iii) identified, that is to say, described in a sufficiently comprehensive manner so as to make it possible to verify that it fulfils the criteria of secrecy and substantiality;
(j) ‘competing undertakings’ means undertakings which compete on the relevant technology market and/or the relevant product market, that is to say:
(l) competing undertakings on the relevant technology market, being undertakings which license out competing technologies without infringing each others' intellectual property rights (actual competitors on the technology market); the relevant technology market includes technologies which are regarded by the licensees as interchangeable with or substitutable for the licensed technology, by reason of the technologies' characteristics, their royalties and their intended use, 27.4.2004 EN Official Journal of the European Union L 123/13
(ii) competing undertakings on the relevant product market, being undertakings which, in the absence of the technology transfer agreement, are both active on the relevant product and geographic market(s) on which the contract products are sold without infringing each others' intellectual property rights (actual competitors on the product market) or would, on realistic grounds, undertake the necessary additional investments or other necessary switching costs so that they could timely enter, without infringing each others' intellectual property rights, the(se) relevant product and geographic market(s) in response to a small and permanent increase in relative prices (potential competitors on the product market); the relevant product market comprises products which are regarded by the buyers as interchangeable with or substitutable for the contract products, by reason of the products' characteristics, their prices and their intended use;
(k) ‘selective distribution system’ means a distribution system where the licensor undertakes to license the production of the contract products only to licensees selected on the basis of specified criteria and where these licensees undertake not to sell the contract products to unauthorised distributors;
(l) ‘exclusive territory’ means a territory in which only one undertaking is allowed to produce the contract products with the licensed technology, without prejudice to the possibility of allowing within that territory another licensee to produce the contract products only for a particular customer where this second licence was granted in order to create an alternative source of supply for that customer;
(m) ‘exclusive customer group’ means a group of customers to which only one undertaking is allowed actively to sell the contract products produced with the licensed technology;
(nn) ‘severable improvement’ means an improvement that can be exploited without infringing the licensed technology.

2. The terms ‘undertaking’, ‘licensor’ and ‘licensee’ shall include their respective connected undertakings.
‘Connected undertakings’ means:
(a) undertakings in which a party to the agreement, directly or indirectly:
(l) has the power to exercise more than half the voting rights, or
(ii) has the power to appoint more than half the members of the supervisory board, board of management or bodies legally representing the undertaking, or
(iii) has the right to manage the undertaking's affairs;
(b) undertakings which directly or indirectly have, over a party to the agreement, the rights or powers listed in (a);
(c) undertakings in which an undertaking referred to in (b) has, directly or indirectly, the rights or powers listed in (a);
(d) undertakings in which a party to the agreement together with one or more of the undertakings referred to in (a), (b) or (c), or in which two or more of the latter undertakings, jointly have the rights or powers listed in (a);
(e) undertakings in which the rights or the powers listed in (a) are jointly held by:
(l) parties to the agreement or their respective connected undertakings referred to in (a) to (d), or
(ii) one or more of the parties to the agreement or one or more of their connected undertakings referred to in (a) to (d) and one or more third parties.