Technology transfer agreements

The current regulation block-exempting certain categories of technology licensing agreements (broadly, where a licensor allows a licensee to employ licensed technology — patents, utility models, know-how, etc — to produce goods or services) from the competition rules on anti-competitive agreements is due to expire on 30 April 2014. The European Commission published for consultation a draft of a new technology transfer block exemption regulation and revised guidelines in February 2013. The consultation period closed on 17 May 2013.

One of the most significant changes in the draft is a change to the definition of technology transfer agreements to clarify that these include agreements that contain provisions relating to the purchase of products or the assignment of other IP rights provided that these are ‘directly and exclusively’ related to the production of the contract products.

The current regulation adopts a market-share threshold, beyond which the exemption does not apply, and provides a list of two categories of restrictions (hardcore and excluded), whose presence bears different effects on the applicability of the block exemption. The threshold is 20 per cent of the combined share of the relevant markets if the agreement involves two competing undertakings, or 30 per cent of the individual share of the relevant markets if the undertakings are non-competitors. The European Commission proposes retaining this approach with the proviso that the 20 per cent market-share threshold also applies to agreements between non-competitors where the licensee owns a technology that it only uses for in-house production and that is substitutable for the licensed technology…

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