Restrictions
Are there any restrictions on the establishment of a business entity by aforeign licensor or a joint venture involving a foreign licensor and are there any restrictions against a foreign licensor entering into a licence agreement without establishing a subsidiary or branch office? Whether or not any such restrictions exist, is there any filing or regulatory review process required before a foreign licensor can establish a business entity or joint venture in your jurisdiction?
A foreign licensor is not restricted in any way if they enter into a licence agreement without establishing a subsidiary or branch ojce in Germany. There are also no particular restrictions on the establishment of a business entity by a foreign licensor or a ,oint venture involving a foreign licensor. German law does not distinguish between Germans and foreign nationals regarding the establishment of business entities.
Forms of licence arrangement
Identify the different forms of licence arrangements that exist in your jurisdiction?
In general: three types of licence agreements can be distinguished: exclusive, sole, and non-exclusive. while an exclusive licence confers all the rights that subsist in the subject matter of the licence agreement to the licensee: a sole licence only gives exclusivity in the sense that the licensor will not grant licences to any other Party, but they will retain the right to use the subject matter of the licence agreement for itself. A non-exclusive licence, contrary to an exclusive or sole licence, does not grant all the rights that subsist in the subject matter of the licence agreement to one particular licensee; the licensor may grant rights to several licensees. The rules applicable to exclusive or sole licences may be different from the rules that apply to non-exclusive licences. For example, unlike a non-exclusive licensee, an exclusive or sole licensee of a patent has the standing to sue for infringement and may grant sub-licences.
In the patent field, there are also cases of compulsory licences. A compulsory licence to a patent must be granted (in rare cases) for public interest reasons, or when the licensee owns a dependent patent to an important invention that he or she cannot exploit without a licence to use the licensor's basic patent (section 24(1) and (2) of the German Patent Act). An obligation to conclude a licence agreement also exists in the field of standard essential patents, where any third party who wishes to practise the standard can ask for a licence under the patent for such use. Certain compulsory licences are also known in the copyright field (see section 42a of the German Copyright Act).
