Striking the Right Balance Between Co-Operation and Competition: Several Antitrust Pitfalls in R&D Alliances and Other Strategic Partnerships

Iohann Le Frapper, General Counsel Networks Group, Alcatel

The aim of this article is to provide guidance to in-house counsel on the assessment and management of key risks associated with partnership opportunities. As such, in-house counsel should be able to quickly identify the antitrust risks related to each type of partnership (joint R&D, joint purchasing, joint manufacturing and/or joint marketing), taking in account the evolution in 2010 and 2011 of the EU regulatory framework on co-operations among firms. The authors highlight the various criteria needed to ensure antitrust compliance (e.g. market shares, threshold issues etc.) and the tricky practical situations that may arise (e.g. information exchange among partners, new “safe harbour” conditions regarding agreements in restraint of trade). The article also addresses the cornerstone issue of discussing upfront among potential partners the access to and allocation of background and foreground Intellectual Property Rights (IPR), failing which the partnership may derail and lead to costly litigation and detrimental business consequences. In this respect, the authors stress how undue IPR restrictions may have an impact on the antitrust analysis of a partnership, this interaction illustrating the growing tension among antitrust and IP topics in high-tech business