Clausole generali nei contratti di trasferimento di tecnologia tra norme eteronome di proprietà intellettuale e lex mercatoria

The interface between intellectual property rights and commercial contracts
(particularly licensing) is still underdeveloped in legal studies and the topic of open
terms is largely overlooked. This article tries to overcome the traditional view of open
terms in business agreements as risky for sophisticated parties because of the possible
activisms of courts in case of litigation. Contrary to the conventional wisdom, the
anecdotical evidence shows that open terms are used in fact by the parties, and they
represent a link between the contract itself and the statutory provisions of intellectual
property laws. The typical clause of best efforts proves the thesis of this article.
Interpreting the best effort clause in the shadow of patent provisions on the duty to
carry out the invention casts new light on how patent laws shape the obligations of
licensees in ways that are consistent with the rationale of intellectual property
protection as incentive to the use of newly created technical knowledge.