One to put in the “Should Have Noticed This Earlier And Alerted Readers To It” file. On 20th February the European Commission announced that it was inviting comments relating to revisions of the Technology Transfer Block Exemption, the current version of which is due to expire in April 2014. The TTBE has been in force in the EU since 2004 and sets out the circumstances under which the parties to a licensing agreement covering patents, know-how and/or software in Europe can be confident that its terms will not fall foul of EU competition law. On the other side, of course, the deals that are outside the scope of the exemption will require close scrutiny to ensure that they are not deemed anti-competitive, so rendering them void.

Clearly, as licensing deals become more prevalent and more lucrative, and with a single EU patent on the horizon, the TTBE – in its current form and in its future one – is of very great importance to all those looking to monetise their IP in Europe through licensing and tech transfer. When you bear in mind the close attention which DG Competition has lavished on IP up to now and the indications that it is going to look even more closely at various issues in the future, it will pay deal-makers to ensure they know the rules very well indeed. When it comes to IP and competition in Europe, it is always worth remembering what the Financial Times had to say about the Commission a few years back. Describing it as “regulator-in-chief of the global technology industry”, the FT stated:

[The Commission] has taken a more combative approach than US regulators in recent years. The European market is so important – technology companies clearly have to do business there. And the global nature of the industry means decisions in Europe have ramifications for products around the world.

A rather strange situation is developing. Europe, with a few notable exceptions, has failed to produce serious competitors to America’s technology giants. Instead it has become a check on the dominance of US companies as a regulatory jurisdiction.

As the TTBE is very definitely an area for experts, I am going to make no further comment except to say it seems as if the consensus among those who know about these things is that, if implemented in their current form, the proposals will tighten up the block exemption regime further. I also note that in the proposed Guidelines the Commission states that there is no “inherent conflict between intellectual property rights and the Union competition rules”. This is because “both bodies of law share the same basic objective of promoting consumer welfare and an efficient allocation of resources”. I had not realised that this is what the objective of IP law is; but, as I say, I am not an expert.

If you do want to see what the main changes being proposed by the Commission are, the IP Kat blog provides a handy checklist. And if you want to submit comments to the Commission on what is being suggested you have until 17th May to do so.

Sectors

Competition/antitrust, Licensing, IP politics, Patents, IP business

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