Commission consults on technology transfer agreements
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The Technology Transfer Block Exemption (TTBER) is a key piece of EU legislation for anyone involved in IP licensing, particularly patents, know-how and software. It determines how EU competition rules apply to licensing agreements for patents, know-how and/or software copyright (note that other forms of copyright licensing, for example media rights, are not covered by the TTBER). The way that IPR holders license their rights to other market participants is crucial for achieving the right balance between stimulating innovation and preserving a level playing field in the internal market. The TTBER creates a safe harbour for non-problematic technology transfer agreements and the accompanying Guidelines provide detailed guidance on the application of the TTBER and on the principles to be applied when assessing whether licensing agreements might be anti-competitive.
The TTBER and Guidelines expire on 30 April 2014 and, on 6 December 2011, the European Commission launched a consultation on how the EU rules governing IP licensing might be revised after that date. No firm proposals have been put forward as yet. The Commission is in "listening mode" and seeks the views of anyone who has practical experience in applying the TTBER or who deals to a significant extent with technology transfer agreements.
Since the TTBER was adopted in 2004, there have been few published decisions on its application. This could be a sign either that the legislation is working well or that the Commission has other priorities (or possibly both). The Commission's experience of IP cases in the past decade or so has focused on big cases of abuse of dominance or patent pooling, neither of which are covered by the TTBER. Comments from interested parties and stakeholders will therefore be a key element in framing the Commission's policy in relation to IP licensing agreements for perhaps the next 10 years.
For more information please contact Nick Pimlott, Parner or Jessica Burns, Solicitor in the Technology and Outsourcing Group at Field Fisher Waterhouse LLP.