Licensing Agreements Antitrust

Podium participants and commentators indicated that patent pools can reduce licensees` transaction costs in a variety of ways. For example, buying a pool license may be less expensive than negotiating separate licenses with each patent holder. (42) The granting of a bundled patent license allows members of the patent pool to offer « one-stop shops » to companies wishing to manufacture products using these patents. According to panel participants, this simplified approach to licensing can enable the development and adoption of new technologies more quickly than could be achieved solely through cross-licensing. (43) In order to promote predictability, EU legislation on cartels and abuse of dominance provides for a number of exemptions by category that create a safe haven by providing exceptions to the prohibition of EU agreements for certain areas (Article 101 of the EUFS) 3. With regard to licensing agreements, the Category Exemption Regulation [3], revised in March 2014[3], concerning the category exemption regulation that has been transferred to technology[3] has changed the EU antitrust regime with respect to the licensing of patents, designs, designs, rights relating to designs and software rights. The category exemption regulation covers technology transfer agreements up to certain market share thresholds (no more than 20% cumulative market share if the companies are competitors and do not represent more than 30% of each company`s market share if they are not competitors). These market share thresholds apply to the licensing market and the market in which products are sold with the technology conceded. When these market share thresholds are reached, the category exemption regulation is consistent with the principle that any restriction is allowed if it is not (expressly) prohibited by GMO TT. However, the category exemption regulation also contains a number of provisions that are not exempt. The TT distinguishes between blacklist clauses and grey clauses. Where agreements do not fall within the scope of the category exemption, they are generally subject to the standard analysis of cartels and abuse of dominance that, on a case-by-case basis (i.e.

without presumption of illegality), consideration should be given to whether the agreements are effectively intended or limited to competition and whether the agreements are exempt from the prohibition of cartels (Article 101 3 of the TFUE). In order to provide further guidelines in this regard, the European Commission has published guidelines on technology transfer[4] that address specific issues and specify what should be taken into account in the evaluation. These guidelines indicate that clauses on the blacklist are generally contrary to EU rules on cartels and abuse of dominant position, while grey list clauses may be excluded. Participants also discussed whether it would be detrimental to competition if patent pools did not offer the underwriters the opportunity to grant only a portion of a pool`s patents, a partial licence at a lower licence rate, instead of offering a single full flat-rate licence. (175) A panelist argued that sublicensings were necessary because, even if a pool originally included only patents considered essential for a standard, some of these patents would no longer be essential over time for all pool holders. (176) In addition, some licensees may wish for excerpts if they already have access to some of the technologies required through existing licenses.