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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Monday, October 06, 2003EU Commission proposes new safe harbour for the licensing of patents and know how.As reported on the RAPID website, the European Commission is seeking comments on changes to the competition rules applicable to the licensing of patents, know how and software copyright. Technology transfer licensing agreements currently benefit of a block exemption (= safe harbour) if certain conditions are met. The Commission proposes a number of changes to the block exemption that will reduce the regulatory burden for companies, while ensuring an effective control of agreements between companies holding significant market power. The new approach must be seen in combination with the modernisation of the European Union's enforcement rules for antitrust which will come into force in May 2004.
The block exemption regulation will only have a black list. By doing away with the white and grey lists of the current regulation, the strait jacket effect is avoided and the scope of the regulation is extended and made more flexible: whatever is not explicitly excluded from the block exemption is now exempted; The scope of the new rules is also extended by covering all types of technology transfer agreements for the production of goods or services. The new regulation is proposed to cover not only patent and know-how licensing but also software copyright licensing, as requested by many of those who commented on the Evaluation Report. Where the Commission does not have the powers to adopt a block exemption regulation, as for patent pools and for copyright licensing in general, the guidelines will give clear guidance as to future enforcement policy. The new rules will make a clear distinction between licensing between competitors and licensing between non-competitors. For obvious reasons competition policy should distinguish between licensing between competitors and between non-competitors as in particular the applicable hardcore list should differ. Competition problems are more likely to arise in licensing between competitors than in licensing between non-competitors. The text of the Consultation document is available  here. The Commission invites all interested parties to send their comments on the proposed new rules by 26 November 2003.
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