On 21 March the EU Commission adopted new rules for the assessment under EU competition rules of technology transfer agreements through which a licensor permits a licensee to exploit patents, know-how or software for the production of goods and services. The revised Technology Transfer Block Exemption Regulation (TTBER) and Technology Transfer Guidelines will replace the existing TTBER and Guidelines from 1 May 2014 onwards. The Commission states that the revised rules facilitate such sharing of intellectual property, including through patent pools, and provide clearer guidance on licensing agreements that stimulate competition. At the same time they aim to strengthen incentives for research and innovation.
The Commission's Press Release states that the main features of the new rules are the following:
- The revised regime continues to reflect that licensing is in most cases pro-competitive.
- New guidance on "patent pools": Patent pools can give companies cheaper and easier access to necessary intellectual property rights, such as standard essential patents, by establishing a one-stop-shop. Recognising the often pro-competitive nature of patent pools, the creation of and licensing from patent pools now benefits from a safe harbour in the Guidelines.
- A more prudent approach on clauses that could harm competition and innovation: Certain types of clauses are no longer automatically exempted from antitrust rules but have to be assessed case-by-case. These are clauses which allow the licensor to terminate a non-exclusive agreement if the licensee challenges the validity of the intellectual property rights, and clauses that force a licensee to license any improvements it makes to the licensed technology to the licensor on an exclusive basis.
- The Guidelines also give guidance on settlement agreements in light of the Commission's recent experience.