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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, May 01, 2004New Commission Regulation (EC) No 772/2004 of 27 April 2004 on Technology Transfer Agreements.A new Commission Regulation (EC) No 772/2004 of 27 April 2004 on the application of  Article 81(3) of the Treaty to categories of technology transfer agreements has entered into force today. The core provision of the new Regulation says in Article 2 thereof: "ExemptionIn the Articles 3 to 7of the new Regulation, a number of exceptions from the general rule given with Article 2 is defined, concerning e.g. market-share thresholds, certain hardcore restrictions like the restriction of a party's ability to determine its prices when selling products to third parties or the limitation of output, except limitations on the output of contract products imposed on the licensee in a non-reciprocal agreement or imposed on only one of the licensees in a reciprocal agreement, and certain excluded restricting clauses as any direct or indirect obligation on the licensee to grant an exclusive licence to the licensor or to a third party designated by the licensor in respect of its own severable improvements to or its own new applications of the licensed technology, any direct or indirect obligation on the licensee to assign, in whole or in part, to the licensor or to a third party designated by the licensor, rights to its own severable improvements to or its own new applications of the licensed technology and any direct or indirect obligation on the licensee not to challenge the validity of intellectual property rights which the licensor holds in the common market, without prejudice to the possibility of providing for termination of the technology transfer agreement in the event that the licensee challenges the validity of one or more of the licensed intellectual property rights. The Commission may withdraw the benefit of this Regulation on a case-by-case basis where it finds in any particular case that a technology transfer agreement to which the exemption provided for in Article 2 applies nevertheless has effects which are incompatible with Article 81(3) of the Treaty. However, there is no longer any provision comparable with that of Article 4 of the former and now expired Regulation 240/96 according to which the exemption provided could also apply to agreements containing obligations restrictive of competition which are not covered by the exemption Articles on condition that the agreements in question are notified to the Commission and that the Commission does not oppose such exemption within a period of four months.
There is a transitional period for certain prior agreements; the prohibition laid down in Article 81(1) of the Treaty shall not apply during the period from 1 May 2004 to 31 March 2006 in respect of agreements already in force on 30 April 2004 which do not satisfy the conditions for exemption provided for in this Regulation but which, on 30 April 2004, satisfied the conditions for exemption provided for in Regulation (EC) No 240/96.
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