Applying block exemptions to IP agreements
Produced in partnership with Bristows

The following Competition practice note produced in partnership with Bristows provides comprehensive and up to date legal information covering:

  • Applying block exemptions to IP agreements
  • Which block exemption applies?
  • Which block exemption/guideline is most likely to be relevant?
  • Technology Transfer Block Exemption—outline and key points
  • Key terminology
  • Thresholds and blacklists
  • Practical tips in applying the Technology Transfer Block Exemption
  • Application of the Technology Transfer Block Exemption—checklist
  • Research and Development Block Exemption
  • Practical tips in applying the Research and Development Block Exemption
  • More...

Applying block exemptions to IP agreements

Intellectual property (IP) agreements relating to, for example, licensing of technology and for the joint development of new technology, may have a restrictive effect on competition. However the pro-competitive benefits are recognised in block exemptions that provide a ‘safe harbour’ from the application of Article 101 TFEU. For agreements falling neatly within a block exemption, only a very cursory examination of Article 101 TFEU issues is needed. Unfortunately, several block exemptions may be potentially applicable and also identifying whether an agreement is definitely within a safe harbour can be difficult—a more practical approach to most commercial arrangements may be necessary.

All block exemptions have a broadly similar structure. Familiarity with the overall structure will help in applying the rules. First the block exemption has a set of recitals, which explain broadly what its purpose is. These are supplemented by a definitions section. In practical terms, it is sensible to pay considerable attention to both the recitals and the definitions—they can be crucial in understanding the correct approach to applying the block exemption. The precise scope of the ‘safe harbour’ is then described—what sort of agreements are covered and between what sort of undertakings? To fall clearly within the safe harbour the parties will need to meet certain market share thresholds and must also refrain from including any 'hardcore clause' in

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