Validity of Non-Disclosure Agreements in SEP Licensing

Abstract

Intellectual property (IP) and competition law are often considered to be at odds with each other. While the former confers property rights and, by definition, a degree of exclusivity, competition law seeks to prevent the accumulation of market power and abuse thereof.1 The exact relationship between competition law and patent law remains opaque, despite its evergrowing importance. For example, while the fact that patents are granted means certain licensing and enforcement practices do not contravene competition law, it must also be the case that some do. Where exactly the line lies, or should lie, is uncertain. This paper focuses on non-disclosure agreements (NDAs) and the prevalent industry practice of patent owners requiring NDAs before they will negotiate or conclude licensing agreements, allegedly to protect their patent rights.