It has been a little while since we have published on the Technology Transfer Block Exemption on this blog (our last post on this subject was back in May). For those who have been longing for an aid to insomnia some further insights, I have published a couple of articles on this topic over the last few months:
First, Competition Law Insight published an article containing some high level comments on the amended block exemption and Guidelines.
Secondly, a rather more discursive piece on the rights and wrongs of the Commission’s approach to non-challenge provisions has recently appeared in the Journal of IP Law and Practice. As well as looking at the competing policies in this area (benefits to implementers vs strong protection for IP and incentives to innovate), the conclusion also considers the prospect for such issues to come before the General Court in the appeals of decisions such as Motorola and Lundbeck. We now know that the former is off the table, but non-challenge clauses in the settlement context appear likely to feature in the various appeals of the Lundbeck decision, even though none of the various parties’ grounds of appeal specifically mention them (e.g. the Lundbeck grounds of appeal here).
The settlement context is in any case somewhat different from the licensing context on which I concentrated in my article. It may still be too early to say whether the Commission’s new approach is having a significant effect on licensing negotiations in practice, but if anyone reading this blog does have any feedback, we would be extremely interested to hear about it. (Perhaps Mark Anderson over on the IP Draughts blog might like to complement his excellent post on the practical implications of the TTBER’s treatment of grant-back clauses – the fact that the article features the word ‘bonkers’ may give away something of Mark’s conclusions – with a companion piece on non-challenge provisions?)
In addition to the articles, Osman and I have also presented a two-part podcast on the new technology licensing regime – the podcasts are available from CPDCast.
And if none of that works, I recommend sleeping pills…