Licensing agreements and the Technology Transfer Block Exemption Regulation : the interplay between competition law and intellectual property law

Abstract

The interplay between competition law and intellectual property law, particularly through the lens of licensing agreements, is a sensitive area in competition law. This is because of the evolving nature of intellectual property and the markets and the struggle of competition law to keep up. This dissertation will explore the complexities of this interplay, along with the pivotal role of the Technology Transfer Block Exemption Regulation, as it is a fundamental tool in the management and understanding of licensing agreements. A key area of focus is the tension that surfaces when licensing agreements, despite being designed to foster innovation and economic growth, are employed in a manner that hinders competition. Furthermore, this study offers a jurisprudential analysis of cases, underscoring the different ways in which licensing agreements have been exploited. This analysis serves to illuminate the complexities and challenges inherent in the intersection of competition law, intellectual property law, and licensing agreements. In discussing the role of the TTBER in this context, this study also explores the ways in which it provides a ‘safe harbour’ for certain types of licensing agreements and lays down conditions for their assessment. The paper concludes that while the TTBER plays a crucial role in managing the tension between competition law and licensing agreements, the assessment of licensing agreements remains largely reactive due to the constant evolution of technology and market sectors. It suggests that the most reasonable way forward is a combination of reactive and proactive regulation of licensing agreements and a consistent line of communication between the Commission and the relevant authorities and the undertakings entering into such agreements.