Canadian COMPETITION & ANTITRUST LAW

Know-how.  European Commission, Glossary of Terms Used in EU Competition Policy: Antitrust and Control of Concentrations: “Specific knowledge held by an individual or a company on a product or production process, often obtained through extensive and costly research and development (R & D).”  Competition Bureau, Intellectual Property Enforcement Guidelines:  “For transactions or conduct involving IP, the Bureau is likely to define the relevant market based on one of the following: the intangible knowledge or know-how that constitutes the IP, processes that are based on the IP rights, or the final or intermediate goods resulting from, or incorporating, the IP.  Defining a market around intangible knowledge or know-how is likely to be important when IP rights are separate from any technology or product in which the knowledge or know-how is used. For example, consider a merger between two firms that individually license similar patents to various independent firms that, in turn, use them to develop their own process technologies.  Such a merger may reduce competition in the relevant market for the patented know-how if the two versions of that know-how are close substitutes for each other, if there are no (or very few) alternatives that are close substitutes for the know-how and if there are sufficient barriers that would prevent the development of conceptual approaches that could replace the know-how of the merging firms. This last condition may hold if the scope of the patents protecting the merging firms’ know-how is sufficiently broad to prevent others from “innovating around” the patented technologies, or if the development of such know-how requires specialized knowledge or assets that only the two merging firms possess and that potential competitors could not develop or obtain in less than two years.”