Intellectual Property in Common Law and Civil Law
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Intellectual Property in Common Law and Civil Law

Edited by Toshiko Takenaka

Drawing together the views and experiences of scholars and lawyers from the United States, Europe and Asia, this book examines how different characteristics embedded in national IP systems stem from differences in the fundamental legal principles of the two traditions. It questions whether these elements are destined to remain diverged, and tries to identify common ground that might facilitate a form of harmonization.
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Chapter 15: What the treatment of covenants not to compete teaches about intellectual property and competition norms

Shubha Ghosh


Intellectual property’s place in the skein of competition law and policy has been a source of active scholarly and doctrinal debate. Whether intellectual property rights limit or enhance the application of competition law depends upon the nature of the market, the technology, and the business practices that are at stake. The ongoing IBM, Microsoft, and Google cases provide focal points for comparison between the US and the EU as well as between common law and civil law systems. This Chapter provides an even more compelling example for understanding intellectual property and competition law: the treatment of restrictive covenants not to compete, specifically in the employment context. Restrictive covenants arise in both civil law and common law countries. They are generally understood as being useful in allowing employer firms to control and limit the spread of firm-specific knowledge. Furthermore, restrictive covenants allow an employer to train employees without the fear of employees later misappropriating their employer’s business connections and advantages. Even more critically, restrictive covenants illustrate the role of competition in promoting innovation through the entry of new firms and products in the marketplace.

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