The regulation on the application of competition law § 10 third paragraph on certain groups of research and development agreements date of-2012-04-20-342 Ministry industry and Fisheries Ministry Published in 2012 booklet 5 entry into force 20.04.2012-31.12.2022 last modified the Change applies to Norway Pursuant LAW-2004-03-05-12-section 10, FOR-2004-04-16-631 Announced at 24.04.2012. 14.50 short title regulations on research and development agreements the legal authority: set by the Government, the Administration and Church Affairs 20. April 2012 under the legal authority of the Act 5. March 2004 No. 12 about the competition between undertakings and the control of concentrations (competition law) § 10 fourth paragraph, cf.. the delegation decision 16. April 2004 No. 631. § 1. Definitions in this regulation is meant by: a) "research and development agreement" an agreement entered into between two or more parties about the conditions of those parties ' in) joint research and development of products or technologies covered by the agreement and joint exploitation of the results of this research and development, ii) joint exploitation of the results of the research and development of products or technologies covered agreement, which is performed in the community according to a prior arrangement entered into between the same parties , iii) joint research and development of products or technologies covered by the agreement, but without joint exploitation of the results, iv) paid research and development of products or technologies covered by the agreement and joint exploitation of the results of this research and development, v) joint exploitation of the results of the paid research and development of products or technologies covered by the agreement according to a prior arrangement entered into between the same parties or we) paid research and development of products or technologies covered by the agreement, but without joint exploitation of the results, b) "agreement" an agreement, a decision of an Association of undertakings or a concerted behavior, c) "research and development" the acquisition of know-how about products, technologies or methods and the implementation of theoretical analysis, systematic investigations or trials, including experimental production, technical testing of products or methods , the listing of the necessary facilities and the acquisition of intellectual property rights to the results, d) "product" a product or a service, including both goods and services in efforts between the link and the finished goods and services, e) "technology covered by the agreement" a technology or method that is a result of the joint research and development work, f) "product covered by the agreement" a product that is the result of the joint research and development or who is depicted or delivered by use of the technologies covered by the agreement , g) "exploitation of results" the production or distribution of the products covered by the agreement or the application of the technologies covered by the agreement, the transfer of intellectual property rights or the licensing of such rights, or the communication of know-how with a view to the manufacture or application, h) "intellectual property rights" intellectual property rights, including industrial property rights, copyright and related rights, in) «know-how» a whole of non-patented practical knowledge that comes from experience and trial and that is secret, substantial and identified, j) «secret», in connection with the know-how, that knowhowen is not generally known or easily accessible, k) "important", in connection with the know-how, that knowhowen is important and useful for the manufacture of products covered by the agreement, or the application of the technologies covered by the agreement, l) "identified", in connection with the know-how, that knowhowen is described in a sufficiently comprehensive manner to that it is possible to verify that it meets the secrets and betydelighetskriteriet , m) "private", in connection with the business, according to a research and development agreement, that the relevant work in a common) is performed by the group or organization or a private undertaking, ii) in the community is left to third parties, or iii) is distributed between the parties by allowing these specializes in research and development or exploitation, n) "specialization within research and development" that each of the parties participating in the research and development activities covered by the research and development agreement , and benefits the research and development between the way they find most appropriate. This does not include paid research and development, o) "specialization within the exploitation" that the parties benefits the individual tasks, such as production or distribution, between them, or imposes on each other restrictions on exploitation of the results, such as restrictions with regard to certain geographic areas, customers or uses. This also includes a situation where only one of the parties produces and distributes the products covered by the agreement on the basis of a sole license granted by the other parties, p) "paid" research and development research and development performed by one party and funded by a funding party, q) "financing party" a party that funds paid research and development without even to perform any part of the research and development business , r) "competing undertakings" an actual or potential competitor, s) "actual competitor» a business that delivers a product, technology or a method that can be improved or replaced by the product or technology covered by the agreement on the relevant geographical market, t)" potential competitor "an undertaking that in the absence of the research and development agreement, on a realistic basis and not just as a theoretical possibility , by a small but permanent increase in the relative prices within three years, most will be able to make the necessary additional investments or assume other necessary switching costs to deliver a product, technology or a method that can be improved or replaced by the product or technology covered by the agreement on the relevant geographical market, u) "relevant product market" the relevant market for the products that can be improved or replaced by the products covered by the agreement , v) "relevant technology market" the relevant market for the technologies or methods that can be improved or replaced by the technologies covered by the agreement.

Of this regulation to the terms "undertaking" and "party" include their respective associated companies.
With "associated undertaking" means: a) enterprises where a party to the research and development agreement, directly or indirectly in) has the power to exercise more than half the voting rights, ii) has the authority to appoint more than half of the members of the regulatory body, the Board of directors or bodies legally representing the undertaking that, or iii) have the right to lead the company's business, b) companies that faced with a party to the research and evaluation agreement directly or indirectly has the rights or the powers listed in letter a, c) enterprises in which an undertaking referred to in the letter b directly or indirectly has the rights or the powers listed in letter a, d) undertakings in which a party to the research and development agreement together with one or more of the companies mentioned in the letter a, b or c, or enterprises in which two or more of the latter undertakings jointly have the rights or the powers listed in letter a , e) enterprises in which the rights or the powers listed in letter a, jointly held by the in) the parties in the research and development agreement or their respective affiliated companies mentioned in the letter a to d, or ii) one or more of the parties to the research and development agreement or one or more of their associated companies mentioned in the letter a to d and one or more third parties.

§ 2. Exceptions to Competition Law § 10 the first paragraph shall not apply to research and development agreements.
This exception applies to the extent that such agreements contain restrictions of competition that fall under the scope of competition law § 10 the first paragraph.
The exception provided for in the first paragraph apply to research and development agreements containing provisions on the transfer or licensing of intellectual property rights to one or more of the parties or to a device that the parties create to perform the common research and development, the paid research and development or the private exploitation, provided that those provisions do not constitute the main purpose of the agreements, but are directly related to and necessary for the implementation of these.

§ 3. Criteria for exceptions to the exception in section 2 apply to the terms and conditions as set out in the second to the fifth paragraph.
It should be set out in the research and development agreement that all parties shall have full access to the final results of the joint research and development or of the paid research and development, including intellectual property rights and know-how that may occur, with a view to further research and development and exploitation, as soon as the final results are available. If the parties limit their deployment rights in accordance with this regulation, in particular if they specialise within the exploitation, can access to the results for the purpose of exploitation is limited accordingly. Research institutes, academic institutions or companies that drive the research and development as a business service, generally without actively exploit the results, can also arrange to use the results solely to further research. It may be set out in the research and development agreement that the parties should pay each other fees to get access to the results for the purposes of further research or exploitation, but the consideration should not be so large that it in effect prevents such access.

If the research and development agreement includes only the joint research and development or just paid research and development, it shall, without prejudice to the second paragraph, be set out in the research and development agreement that each Party shall grant access to the other parties ' existing know-how, if this know-how is absolutely necessary for that party may exploit the results. It may be set out in the research and development agreement that the parties should pay each other fees to gain access to each other's existing know-how, but the consideration should not be so large that it in effect prevents such access.
Common exploitation can include only those results that are protected by intellectual property rights or constitute know-how, and that is absolutely necessary for the manufacture of the products covered by the agreement or the application of the technologies covered by the agreement.
Parties who have been conferred the manufacture of the products covered by the agreement as part of the specialization within the exploitation, must be required to meet delivery orders from the other parties, except if the research and development agreement also includes joint distribution according to § 1 the first paragraph 1 letter m (i) or (ii), or if the parties have agreed that only the party that makes the products covered by the agreement can deploy them.

§ 4. Market share threshold and duration of the derogations When the parties are not competing undertakings, the exemption provided for in § 2 application as long as the research and development work is in progress. At the joint exploitation of the results, the exemption still apply in a period of seven years from the day when the products or technologies covered by the agreement the first time is being marketed in Norway.
When two or more of the parties are competing undertakings, the exemption provided for in § 2 application in the period referred to in the first paragraph of this section only if, at the time of the conclusion of the research and development agreement, a), the parties ' combined market share, when it comes to research and development agreements mentioned in section 1 subsection letter a (i), (ii) or (iii), is at most 25% of the relevant product and technology markets , or b) funding the party and all parties that this has entered into research and development agreements with about the same products or technologies covered by the agreement, when it comes to research and development agreements mentioned in section 1 subsection letter a (iv), (v) or (vi), has a total market share of most 25% of the relevant product and technology markets.

After the expiry of the period referred to in the first paragraph shall continue to apply the exemption as long as the parties ' combined market share does not exceed 25% of the relevant product and technology markets.

§ 5. Especially severe restrictions the exception set out in section 2 shall not apply to research and development agreements which, directly or indirectly, alone or in combination with other factors under the control of the parties, have any of the following purposes: a) to limit the parties ' freedom to carry out research and development, on its own or in cooperation with third party, on a site with no connection to the area research and development agreement applies , or, after the joint research and development or the paid research and development is carried out, on the area agreement applies or that relate to it, b) to limit the production or sales, with the exception of the determination of the production target) if the joint exploitation of the results includes the joint production of the products covered by the agreement, ii) the determination of the sales targets if the joint exploitation of the results includes the joint distribution of the products covered by the agreement or the public licensing of the technologies covered by the agreement , according to § 1 the first paragraph letter m (i) or (ii), iii) practices that make up the specialization within the exploitation, and iv) restriction of the parties ' freedom to manufacture, sell, assign or license the products, technologies or methods that compete with the products or technologies covered by the agreement, in the period the parties have agreed to take advantage of the results in the community, c) to fix prices on the sale of the products covered by the agreement or the licensing of the technologies covered by the agreement to the third party , with the exception of the determination of the rates to direct customers or the determination of licence fees to licensees directly, if the joint exploitation of the results includes the joint distribution of the products covered by the agreement or the public licensing of the technologies covered by the agreement, according to § 1 the first paragraph letter m (i) or (ii), d) to limit the geographic area or the customers who passively sell the products, the parties can covered by the agreement or license the technologies covered by the agreement to , with the exception of the obligation to give another party one license on the results, e) to impose on the parties an obligation to refrain from or limit the active sale of the products or technologies covered by the agreement, in geographical areas or to customers that are not exclusively assigned to one of the parties through the specialization within the exploitation, f) to impose on the parties an obligation to refuse to meet demand from customers in their respective geographical areas or from customers who otherwise are distributed between the parties through specialization within the exploitation, and that will market the products covered by the agreement in other geographic areas in Norway, g) to impose on the parties an obligation to limit the users ' or resellers ' ability to buy the products covered by the agreement from other dealers in Norway.

section 6. Limitations set forth in the exempt exception to § 2 shall not apply in the following commitments in research and development agreements: a) a commitment to, after the research and development work is carried out, not to contest the validity of intellectual property rights that the parties have in Norway and which is of importance for research and development work, or, after the research and development agreement has expired, not to contest the validity of intellectual property rights that the parties have in Norway , and that protect research and development results, without affecting the possibility that the research and development agreement may be terminated in the event one of the parties disputes the validity of such intellectual property rights, b) a commitment not to grant licenses to third parties on the manufacture of the products covered by the agreement or on the application of the technologies covered by the agreement, unless it is set out in the agreement that the results of the joint research and development or the paid research and development to be exploited by at least one of the parties, and that this exploitation to take place in Norway to third parties.

section 7. The application of market share limit by application of market share limit set out in section 4, the following rules shall apply: a) the market share shall be calculated on the basis of the sales value on the market; If there is no any information about the sales value on the market, estimates based on other reliable market information, including information about the sales volume on the market, is used to calculate the parties ' market share.

b) the market share shall be calculated on the basis of information for the previous calendar year.

c) the market share held by the enterprises mentioned in § 1 the second paragraph letter e, is to be distributed equally among the companies that have the rights or the powers listed in the letter a in the said paragraph.

d) if the market share referred to in section 4, third paragraph, in the first place is not of over 25%, but later rises above this level without exceeding 30%, the exemption provided for in § 2 still apply in two consecutive calendar years after the year in which the limit of 25% was first exceeded.

e) if the market share referred to in section 4, third paragraph, in the first place is not of over 25%, but later rising to over 30%, the exemption provided for in § 2 still apply in one calendar year after the year in which the level of 30% was first exceeded.

f) application of the letter d and e may not be combined so that a period of two calendar years is exceeded.

section 8. Transition period Competition Law § 10 the first paragraph shall not apply in the time period from 1. January 2011 to 31. December 2012 with regard to agreements that were already in force 31. December 2010, and which do not meet the criteria set out in the exceptions this chapter, but which meet the criteria for exemption laid down in regulation 17. August 2004 No. 1197. § 9. Validity this regulation takes effect immediately and applies to 31. December 2022.