Lexis PSL Competition Practice Note
®
Competition law considerations in intellectual property
licensing — flowchart
Produced in partnership with K&L Gates LLP
This flowchart highlights aspects of antitrust or competition law to consider when licensing intellectual
property (IP), such as the scope of the Technology Transfer Block Exemption Regulation (TTBER)
Commission Regulation (EU) 316/2014.
Is the licence of know-how, a patent, utility model,
design right, topography of semiconductor product,
supplementary protection certificates for medicinal
products or other product for which such supplementary
protection certificates may be obtained, plant breeder’s
certificate and software copyright, or a combination of
these?
No
Yes
The Technology Transfer Block Exemption Regulation
(TTBER) will not apply and an individual assessment of
any negative effects of the agreement will need to be
carried out. Common restrictions that require analysis
include:
No
Yes
If the parties to the agreement are competitors, is their
combined market share 20% or below on the relevant
technology and product market?
• exclusivity provisions
• royalty provisions
• non-complete obligations
Is the agreement is entered into between two parties
only?
No
• sales restrictions
• output restrictions
• field of use restrictions
• captive use restrictions
• tying/bundling provisions
if negative effects on competition might
result from the agreement, the agreement
may still benefit from an individual
exemption if the positive effects of the
licence outweigh the negative effects.
ITT 0516 Application of EU competition rules to IPR licensing assignment
arrangements and the types of restrictions (Update)
If the parties to the agreement are not competitors, are
the market shares of each of the parties 30% or below on
the relevant technology and product market?
Yes
The TTBER will apply to the agreement
provided that the agreement contains to
hardcore restrictions.
Any provisions that amount to ‘excluded
restrictions’ cannot benefit from the
TTBER but, if these can be severed, the
remainder of the agreement may still
benefit from the TTBER.
Competition law considerations
in intellectual property licensing—
flowchart
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are trademarks of Reed Elsevier Properties Inc. © LexisNexis 2015 SA-0915-068. The information in this document is current as of September 2015 and is subject to change without notice.