The European Commission has adopted new rules for the assessment of technology transfer agreements under EU antitrust rules. The purpose of such agreements is to enable companies to license the use of patents, know-how or software held by another company for the production of goods and services. The Commission states that the revised rules facilitate such sharing of intellectual property, including through patent pools, and provide clearer guidance on licensing agreements that stimulate competition. At the same time they aim to strengthen incentives for research and innovation.
The new regime consists of the Technology Transfer Block Exemption Regulation (TTBER), which exempts certain licensing agreements from antitrust rules, and the Technology Transfer Guidelines, which provide further guidance on the application of the rules.
The main features of the new rules are the following:
· The Commission claims to have made incremental improvements to the current regime, which overall received positive feedback from stakeholders in the two public consultations.
· Recognising the often pro-competitive nature of patent pools, the creation of and licensing from patent pools now benefits from a safe harbour in the Guidelines.
· Certain types of clauses are no longer automatically exempted from antitrust rules but have to be assessed case-by-case. These are clauses which allow the licensor to terminate a non-exclusive agreement if the licensee challenges the validity of the intellectual property rights, and clauses that force a licensee to license any improvements it makes to the licensed technology to the licensor on an exclusive basis.
· The Guidelines also give guidance on settlement agreements in light of the Commission’s recent experience.
The adopted texts can be found at: http://ec.europa.eu/competition/antitrust/legislation/transfer.html#TTBER_and_guidelines
