European Commission opens consultation on the reform of the Technology Transfer Block Exemption Regulation
The European Commission has opened a consultation on its Proposal to reform of the Technology Transfer Block Exemption Regulation and its Guidelines. Stakeholders are invited to submit their opinions before 17 May 2013. The Regulation covers technology transfer agreements, through which a licensor permits a licensee to exploit patents, know-how or software for the production of goods and services. Its aim is to establish which requirements these licenses must meet for not being declared anticompetitive in the sense of Art. 101 Treaty for the Functioning of the European Union. As explained by the Commission, the Regulation exempts licenses concluded between companies that have limited market power and that respect certain conditions set out in the Regulation. Such agreements are deemed to have no anticompetitive effects or, if they do, the positive effects outweigh the negative ones.
Following a first consultation in December 2011, the Commission is proposing changes to the existing regime. According to the related Commission press release the amendments relate to “certain types of agreements or clauses such as the possibility to terminate an agreement if a licensee challenges the validity of the IPR or all sorts of exclusive grant-backs that oblige to license back to the licensor improvements made by the licensee would not be automatically exempted but would have to be assessed on a case-by-case basis because they might stifle competition or innovation”. New provisions on “patent pools” will also be included in the Guidelines.
The Regulation and the Guidelines are very useful tools when drafting Technology Transfer Agreements. It allows to determine which clauses are on the safe side and which ones run the risk of being declared anticompetitive. Innovative companies eager to license their technology are advised to study them careful when drafting their contracts.