European Commission introduces its new technology transfer regime

By Claire Davies and Osman Zafar

On 21 March 2014, the European Commission adopted a revised technology transfer block exemption regulation (TTBER) and accompanying guidelines. The new rules, designed to provide better guidance on ‘how to license in ways that stimulate innovation and preserve a level playing field in the single market’, come into force on 1 May 2014 and will apply for 12 years. As the transitional period before the new regime affects existing agreements is just one year, agreements already in force must be compliant by 30 April 2015 to benefit from the new TTBER’s protection. Overall, the new regime does not mark a radical departure from the old one. Nonetheless, several notable changes have been introduced that may increase uncertainty for intellectual property (IP) owners in particular. Several of the principal changes most relevant to life sciences are discussed below. It is worth noting that for these purposes, a technology transfer agreement is a licensing agreement where the licensor authorises the licensee(s) to use patents, know-how or software for the production of goods and services. Such agreements are acknowledged to improve economic efficiency and can facilitate competition. If the conditions in the TTBER are satisfied, such an agreement will automatically be block-exempted from article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibition on anti-competitive agreements/practices. Agreements that do not fulfil these criteria may nevertheless benefit from an individual exemption. The guidelines provide information both on the application of the TTBER and on how to assess those agreements/provisions that fall outside the TTBER’s ‘safe harbour’…

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