On 21 March 2014, the European Commission (EC) adopted new rules for the assessment of technology transfer agreements under the EU antitrust rules. The purpose of such agreements is to enable companies to license the use of patents, know-how or software held by another company for the production of goods and services. Although, as compared with the previous regime, the changes are not dramatic, these rules are important for any company active in this area in the EU and they should review them carefully.
The new regime consists of two instruments. The first is the Technology Transfer Block Exemption Regulation (TTBER), which creates a safe harbour for licensing agreements concluded between companies that have limited market power and that respect certain conditions set out in the TTBER. Such agreements are deemed to have no anticompetitive effect or, if they do, the positive effects outweigh the negative ones. The second instrument is the Technology Transfer Guidelines, which provide guidance on the application of the TTBER as well as on the application of EU competition law to technology transfer agreements that fall outside the safe harbour of the TTBER.
The new rules take effect in May 2014.