Consultation on technology transfer agreements

On 20 February 2013, the European Commission launched a consultation on its proposal for revisions to the Technology Transfer Block Exemption (TTBE) and the related Technology Transfer Guidelines. The proposal aims to update the current legislation in order to encourage research and innovation, facilitate the diffusion of intellectual property and promote competition. The consultation will end on 17 May 2013. Therefore, interested parties have less than three months to make their views heard.

The current TTBE and guidelines, which expire on 30 April 2014, set out the commission’s approach to the application of EU competition law to technology transfer agreements (i.e. transfers and licences of patents, know-how and software copyrights). They provide for the automatic exemption of technology transfer agreements from the EU and national prohibitions on anti-competitive agreements provided such agreements meet certain conditions. They must fall below the safe harbour market share thresholds, not contain any hardcore restrictions of competition (e.g. restrictions on a party’s ability to determine resale prices, the allocation of markets or customers, etc) and exclude certain restrictions (e.g. exclusive grant-backs, ‘no-challenge’ clauses).

The new proposal preserves the principle of automatic exemption and has not fundamentally revised the TTBE and guidelines, but sets out a number of changes. In the TTBE, these mainly relate to the scope of application of the TTBE, the extension of certain of the safe harbour market share thresholds, permitted restrictions on passive sales and revisions to the excluded restrictions. There is also new guidance in the draft proposed guidelines on reverse payment settlements and patent pools… 

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