On 6 December 2011, the European Commission announced that it had begun a review of EU antitrust rules in respect of technology transfer agreements. The first phase of this review will take the form of a public consultation in which various stakeholders will provide the Commission with feedback on the effectiveness of the current regime and identify improvements.
Technology transfer agreements are agreements where a licensor authorises a licensee to use its technology (i.e., patent, know-how, software licensing) for the production of goods and services. These can be concluded bilaterally or between several parties (e.g., patent pools), as well as between competitors and non-competitors (i.e., horizontal and vertical agreements). Competition rules see to it that technology transfer agreements are pro-competitive and do not prevent innovation.
The principal applicable rules for these types of agreements are contained in the Technology Transfer Block Exemption Regulation 772/2004 ("TTBER") and its accompanying Guidelines. The TTBER deals only with bilateral agreements whereas the Guidelines cover both bilateral as well as multiparty licensing agreements. The stated aim of the TTBER is to encourage R&D and the dissemination of innovation in order to stimulate competition in the EU.
Under the current EU technology transfer regime, agreements which are considered non-problematic for competition are exempted by the TTBER from the Article 101 TFEU prohibition. A "safe harbour" is granted to undertakings in cases where technology agreements between competitors who have less than a 20% market share, or non-competitors who have less than a 30% market share, produce pro-competitive effects which outweigh any competitive restrictions contained in the agreements. The TTBER also defines the so-called "hardcore restrictions" which can never qualify for an exemption. The accompanying Guidelines provide further guidance on the application of the competition rules to technology transfer agreements that do not meet the safe harbour criteria.
The TTBER will expire on 30 April 2014. Therefore, the Commission has to decide whether, in light of the responses received during the consultation, it will be modifying or replacing the current regime for the period thereafter. Stakeholders have until 3 February 2012 to respond to the consultation.
In parallel, the Commission also published an external report on the assessment of potential anti-competitive conduct in the field of Intellectual Property Rights (IPRs) as well as on the interplay between competition policy and IPR protection.
More specifically, the study examines the effects of IPR contracting (including cross-licensing, grant-backs and pass-through) on competition in light of relevant economic literature and case law, and makes some proposals for competition policy towards issues related to IPR contracting in general. Another focus of the study concerns IPRs in the context of merger control remedies.
More information on the TTBER review consultation is available on the Commission's website at:
http://ec.europa.eu/competition/consultations/2012_technology_transfer/press_release_en.pdf
For more information on the Commission's report on competition policy and IPRs, the full report is available on the Commission's website at:
http://ec.europa.eu/competition/consultations/2012_technology_transfer/study_ipr_en.pdf
