Anvendelse af strategisk kontrahering i eksklusive patentlicensaftaler

Adis Cosovic & Tobias Emil Andersen

Student thesis: Master thesis

Abstract

This thesis examines to what extent strategic contracting can be utilized in exclusive patent licensing agreements to generate competitive advantages through knowledge sharing. When utilizing each other’s unique competences, contracting parties are able to create stronger competitive advantages, as they gain access to specific resources only found in the relation between the parties. The Danish Patent and Trademark Office has developed a standard for companies to use when contracting and is the main focal point of this thesis. A legal analysis of the standard clearly indicates that little emphasis has been placed on inter-firm cooperation. Questions such as “Why companies end up with joint ownership over competitive advantages when cooperating?” are left unanswered. The consequence of joint ownership under the current legal doctrine is that parties must agree on every aspect when commercializing the competitive advantage. This consequence clashes with the optimal utilization of competitive advantages, ultimately leading to value destruction. As a result, parties are led to a relationship where they lack sufficient incentives to cooperate and create joint competitive advantages, even though an exclusive license agreement provides a solid foundation for cooperation. This outcome stems from a fear of opportunism rooted in both contracting parties. Acknowledging that ownership should be divided based on the parties’ unique interests, ensures that the parties find themselves in a situation where they under certain circumstances have incentives to cooperate. Whether the parties choose to cooperate or stay passive depends solely on the profit generated through cooperation. Through combining theoretical insights from both legal and economic fields of study is becomes clear that the parties need to develop their own legal doctrine for joint competitive advantages based on a hierarchy inspired agreement, which addresses these problems. An intervention in the legal doctrine and standard paves the way for companies to utilize strategic contracting in order to create stronger competitive advantages than their competitors, through the exploitation of knowledge sharing and their strategic fit.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2018
Number of pages135
SupervisorsKim Østergaard & Kalle Rose