New Technology Transfer Agreements Regime to kick in from 1 May: caution needed for the few areas that have changed

After two public consultations in 2011 and 2013, and reportedly much internal debate, the European Commission’s new regime for the assessment of technology transfer agreements under EU competition law, which was adopted last month, will enter into force on 1 May 2014. As a reminder, these agreements involve the licensing of technology (e.g. patents, know-how or software) for the production of goods and services, between two or more competing or non-competing parties.

The new Technology Transfer Block Exemption Regulation (“TTBER”) and Technology Transfer Agreements Guidelines (the “Guidelines”) largely mirror their predecessors and do not bring about many changes compared to the current regime. In particular, the safe harbour is maintained where the parties to the agreement have a combined market share below 30% (for noncompetitors) and 20% (for competitors), except where the agreement includes so-called hard-core restrictions. However, there are a few interesting changes. The main ones relate to patent settlements (a controversial extension of the principles applied by the Commission in the pharmaceutical sector), technology pools and the exclusion of certain clauses from the benefit of the block exemption regulation. So there is a certain hardening of the position of the Commission.

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