Application of the RDBE
Many R&D agreements are outside the scope of Article 101 altogether:
- R&D agreements at a ‘theoretical’ stage;
- agreements between non-competitors;
- outsourcing to specialist R&D organisations;
- most collaboration that does not extend to joint exploitation.
The RDBE is available to the following types of agreement:
- joint R&D and joint exploitation of the results of the R&D;
- joint exploitation of the results of R&D arrived at by previous joint R&D between the same parties;
- joint R&D without joint exploitation of the results.
The following contractual obligations are also exempt:
- a non-compete obligation (in the R&D);
- any other clauses directly related to the R&D agreement and necessary for its implementation (e.g. those concerning IP rights).
The following conditions apply:
- all parties to have access to results of R&D for purposes of further research and for further exploitation (unless a commercial research institute/academic body);
- where agreement is R&D only, each party must be free to exploit results independently (although non-competitors may be limited to one or more fields of use).
Market share thresholds and duration of the exemption
Non-competitors (if Article 101 applies at all).
- R&D only: duration of exemption unlimited; market share unlimited.
- Exploitation of results: exemption lasts for 7 years regardless of market share; thereafter indefinitely provided combined market share remains ≤25%.
Competitors (actual or potential).
- R&D only: duration of exemption unlimited, provided combined market share ≤25% at date of agreement.
- Exploitation of results: exemption lasts for 7 years regardless of whether market share now >25%; thereafter indefinitely provided combined market share remains ≤25%.
- R&D stage: market for products capable of being improved or replaced by the contract products (i.e. those developed under the contract).
- Exploitation of results stage: market for the contract products and its substitutes.
The RDBE includes a list of terms which are regarded as serious restrictions of competition; any agreement which contains them will be outside the scope of the block exemption (and would be unlikely to fulfil the Article 101(3) criteria).
|R&D||The acquisition of know-how relating to products or processes by the carrying out of analysis, study, experimentation etc. and the obtaining of IPRs for the results.|