On 21 March 2014, the Commission adopted a new technology transfer block exemption regulation ("TTBER") and accompanying guidelines ("TT Guidelines"). These instruments provide the framework of analysis for "technology transfer agreements": license agreements allowing the licensee to produce products incorporating "technology rights" (know-how and various intellectual property rights, such as patents, utility models and plant breeders' rights). The new framework will apply from 1 May 2014 until 30 April 2026. There is also a transitional period of one year within which technology transfer agreements block exempted under the previous framework will have to be brought in line with the new TTBER.
First, it is clear now that the TTBER only applies to licensing agreements that fall within the scope of the block exemption regulations on R&D and specialization agreements. Further, the scope of application has been extended to cover provisions concerning the purchase of products or the licensing/assignment of other IPRSs such as trademarks to the extent that those provisions are directly related to the production or sale of the products produced with the licensed technology.
In addition, the new TTBER maintains the market share thresholds under which a safe harbour is provided to bilateral agreements when certain conditions are met (i.e. 20% for agreements between competitors and 30% for agreements between non-competitors). However, certain provisions frequently used in license agreement would no longer benefit from the safe harbour protection. In particular, termination clauses in non-exclusive license agreements, all exclusive grantback clauses, and passive sales restrictions in agreements between non-competitors, will now fall outside the TTBER and therefore require an individual assessment of their likely effects.
Moreover, the Commission has shortened the TTBER's hardcore list for competitors but this may or may not mean that there have been material changes. This does not become apparent when reading the hardcore list itself, for example, it seems to follow from the wording of Article 4(1)(c)(i) TTBER that field of use restrictions should henceforth be regarded as hardcore restrictions. However, the Commission has indicated in a press release it only intended to propose textual changes. That the amended hardcore list has no changes in regards to substance also seems to follow from the TT Guidelines.
Finally, the TT Guidelines also include new sections on licensing in the context of settlement agreements and technology pools. A noteworthy innovation is that the new the TT Guidelines create a "soft law safe-harbour" for the creation and operation (including the licensing) of technology pools, regardless of the market position of the parties but subject to certain cumulative conditions (see section 261 of the TT Guidelines).
