Consultation on a new EU block exemption regulation for IP licensing
IP Draughts is working with colleagues on a draft response to the European Commission’s consultation exercise on what should replace the Technology Transfer Block Exemption Regulation when it expires. In essence, our views are that:
- The European Commission should replace the Regulation when it expires.
- The new Regulation should provide a clear “safe harbour” for technology transfer agreements. Unfortunately the current Regulation has moved away from the clearer position of its predecessors, by making the safe harbour too dependent on uncertain economic questions such as whether the parties are competitors and the percentage market shares that they have. It is extremely difficult to give concrete advice when dealing with something as nebulous as a “technology market”.
- The general direction of the new Regulation should be towards greater liberalisation – allowing more terms that parties want to include in TT agreements to benefit from the safe harbour. Examples include grant-back clauses, no-challenge clauses and non-compete clauses. More generally, there should be a prior assumption that TT agreements are pro-competitive, and one should not have to justify market-sharing or customer-sharing provisions, which in principle are regarded as hardcore provisions at present.
IP Draughts is not expecting the Commission to agree to all of these points – particularly the last one – given the historic attitudes of the Commission in this area. What we would like to see is an approach closer to that taken in the US, where principles such as the “but for” test and the rule of reason result, in practice, in greater legal certainty that TT agreements are acceptable unless they contain very anti-competitive provisions.
Execution of agreements remotely
IP Draughts’ attention has recently been drawn to a practice note issued by the Law Society of England and Wales on the subject of executing agreements. It addresses such issues as exchanging signatures by fax and email, and prior signing of a signature page by an executive, for his lawyer to send on to the other contracting party (or their lawyer) when the deal is struck.
The practice note is not very new, but it is very helpful. Readers may wish to read it in conjunction with last year’s blog item on IP Draughts about this general subject.
Caption competition reminder
There is still time to enter our Christmas caption competition – what is the snowman thinking? The competition will close at the end of this month. The prize will be a copy of the soon-to-be-published third edition of our book on contract drafting (and not the third edition of our book on boilerplate clauses, which will be coming out later in the year – sorry, I got the two confused when I announced the competition).