Publieke EU-consultatie: groepen overeenkomsten inzake technologieoverdracht

Publieke consultatie voor de ontwerpverordening van de Commissie betreffende de toepassing van artikel 101, lid 3, van het Verdrag betreffende de werking van de Europese Unie op groepen overeenkomsten inzake technologieoverdracht, 20 februari - 17 mei 2013.

Uit 't persbericht: The European Commission invites comments on a proposal for new competition rules for the assessment 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 proposal aims to update the current regime in order to strengthen incentives for research and innovation, facilitate the diffusion of intellectual property and stimulate competition. In light of stakeholders' submissions, the Commission will adopt a new regime before April 2014.

Uit de consultatie:
Objective of the consultation
In the meaning of the EU competition rules, a technology transfer agreement is a licensing agreement where one party (the licensor) authorises another party or parties, the licensee(s), to use its technology (patent, know-how, software license) for the production of goods and services.

The rules on how to assess technology transfer agreements are set out in two instruments, the technology transfer block exemption regulation ("TTBER") and accompanying Guidelines. The TTBER exempts certain categories of 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 effects or, if they do, the positive effects outweigh the negative ones. The Guidelines 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.

These instruments will expire on 30 April 2014. The Commission has now drafted a proposal for a revised TTBER and Guidelines. The current consultation is seeking stakeholders' views on this proposal.

Addressees of this public consultation
Citizens, public authorities, organisations, and, in particular, the business community and their representatives as well as other stakeholders including industry associations and consumer interest associations who have had direct experience of applying the current rules on technology transfer agreements and/or who deal to a significant extent with licensing agreements for the transfer of technology.

Main changes
For the assessment of whether technology pools such as patent pools are pro-competitive, an important factor is whether only complementary technology (i.e. non-competing technology) is included in the pool. Technology which is essential to produce a particular product is by definition complementary (if you need both A and B to produce X, then A and B are both essential and complementary). The Commission proposes to clarify that the definition of essentiality covers not only essentiality in relation to producing a particular product but also in relation to complying with a standard.

The section further clarifies that licensing agreements between a pool and third parties in principle fall outside the scope of the TTBER. This is because licensing out from a pool is normally considered to be a multiparty agreement given that contributors in general determine together the conditions for such licensing.

Finally, the section on pools now provides a comprehensive safe harbour for pools covering not only the creation of the pool but also its subsequent licensing out. By structuring their pool and the subsequent licensing agreements from the pool in such a way that the safe harbour conditions are fulfilled, the pool contributors can be certain that the pool is considered to be pro-competitive, regardless of the market share the pool could obtain. This is expected to give further incentives to the creation of pro-competitive pools.

How to submit your contribution

• In your reply, please indicate whether you are replying as citizen, organisation or public authority. If your organisation is registered in the Transparency Register, please indicate your Register ID number. If your organisation is not registered, we invite you to register now. It is not compulsory to be registered in order to reply to the consultation. Contributions from registered and non-registered organisations will be published under different headings.
• Contributions will be published on this webpage. Submissions that are clearly marked "confidential" will be treated as such and not published. In that case please also provide a non-confidential version of your reply. It is important to read the privacy statement attached to this consultation for information on how your personal data and contribution will be dealt with.
• You are invited to respond to this consultation in any official EU language. Given the possible delays in translating comments submitted in certain languages, translations of the replies into one of the Commission's working languages (preferably English) would be welcome to enable the Commission to process them more swiftly.
• We would appreciate receiving documents in an electronic format.
• Please note that we cannot guarantee to take account of replies received after the deadline.