Opinions

The Block Exemption Regulation for Technology Transfer (TTBER) states that Article 101(1) TFEU does not apply to certain categories of technology transfer agreements. Since November 2022, the EU Commission has been conducting a review process, which has now entered the impact assessment phase. In its statement, the Institute focuses in particular on the questions raised by the European Commission in its call for contributions of 31 January 2025.

In view of the technological developments since the adoption of the current Block Exemption Regulation, the statement examines, among other things, whether and how the licensing of artificial intelligence (AI) data and models should be covered. With regard to data, it recommends a cautious approach to extending the scope of the TTBER to certain categories of data and data-related rights. While the Institute believes that data licensing in the European Union should be improved to promote innovation and social welfare, particularly in the context of AI development, it also argues that the TTBER is not the appropriate framework for this. Instead, consideration should be given to separate guidelines that go beyond data licensing and promote data sharing through rules on Article 102 TFEU.

With regard to the licensing of AI models, the statement emphasizes that the Commission should clarify the scope of application in the TTBER and in the guidelines, both in relation to the current applicability of the TTBER to certain cases and in relation to the inclusion of AI models.

The statement supports the Commission's view that applying market share thresholds to technology markets raises practical difficulties. Nevertheless, the Institute advises against changing the rules in the TTBER. Instead, the Institute would support a transition from a “4plus” to a “3plus” rule in the TT Guidelines.

The Commission's intention to incorporate case law on pay-for-delay settlements into the TT Guidelines is supported by the statement. Specifically, the opinion recommends the formulation of a specific hardcore restriction that explicitly reflects the conditions for classifying the licensing of rights as part of pay-for-delay settlements as a restriction by object within the meaning of Article 101(1) TFEU.

The safe harbour criteria for technology pools set out in the TT Guidelines are in principle supported by the statement as being appropriate. Finally, the Institute recommends that the Commission include specific rules in the TT Guidelines — including a safe harbour rule — for the assessment of agreements on licensing negotiation groups (LNGs) concluded between potential licensees under Article 101 TFEU.

Position Statement as PDF:

Position Statement of the Max Planck Institute for Innovation and Competition of 25 April 2025 in the framework of the revision of the Technology Transfer Block Exemption Regulation and the accompanying Guidelines

On 27 April 2023, the European Commission presented its proposal. The proposed regulation aims at improving the licensing of SEPs by reducing the uncertainty that surrounds licensing negotiations and lowering transaction costs. In order to achieve these objectives, the Commission has considered different policy options. Of these, the Proposal implements (1) the setting up of a mandatory register for SEPs with essentiality checks of selected and representative random samples of SEPs, (2) the establishment of a process for determining a non-binding aggregate royalty rate, and (3) a mandatory pre-litigation conciliation procedure for FRAND royalty determination, combined with (4) voluntary guidance on SEP licensing. Institutionally, a new competence centre within the European Intellectual Property Office (EUIPO) is to be in charge of managing and performing these tasks.

On 5 July 2023, the European Commission issued a proposal for the regulation that intends to relax the requirements for marketing authorisation of plants obtained by certain new genomic techniques (NGTs) in the EU. While NGTs are expected to become more appealing to breeders and farmers, the complexity of the intellectual property (IP) landscape surrounding NGTs and resulting products can have a discouraging effect on innovation. In view of numerous concerns related to IP protection for NGTs and NGT-derived plants, a research group at the Institute has developed a set of policy recommendations that can facilitate access to and utilisation of IP-protected NGTs and their products in the plant breeding sector.

To the Position Statement:
Position Statement (8 August 2023) on New Genomic Techniques and Intellectual Property Law: Challenges and Solutions for the Plant Breeding Sector

More on this topic:
CRISPR/Cas Technology and Innovation: Mapping Patent Law Issues

In particular, the Institute raises awareness about possible overly broad blocking effects of the DMA on national rules, which may have the unintended consequences of privileging gatekeepers by jeopardizing future national legislative initiatives. This ultimately obstructs the achievement of contestability and fairness in digital markets. A complementary application of the competition rules and an effective enforcement of the DMA is, against this backdrop, crucial. Yet there is uncertainty over administrative enforcement mechanisms, and it is unclear what role private enforcement plays in the current legal design of the DMA. The position statement identifies and examines challenges in the implementation of the DMA, along with recommendations for meeting them.

Position Statement of the Max Planck Institute for Innovation and Competition of 2 May 2023 on the Implementation of the Digital Markets Act (DMA)

Digital Markets Act (DMA)

Commission Implementing Regulation for the DMA of 14 April 2023

Position Statement as pdf:
Position Statement of the Max Planck Institute for Innovation and Competition of 23 January 2023 on the ‘Design Package’ (Amendment of the Design Regulation and Recast of the Design Directive)

by
Annette Kur, Tobias Endrich-Laimböck,  Marc Huckschlag

Further information on the webpage of the European Commission:
Intellectual property – review of EU rules on industrial design (Design Directive)

This second Position Statement, which follows the Institute's Position Statement of 7 May 2021, reflects on the legal and practical implications of the Ministerial Decision in view of the ultimate goal of overcoming the COVID-19 pandemic. A particular focus here is on TRIPS flexibilities relating to compulsory licensing of patents.

Position Statement of 5 July 2022 on the Decision of the WTO Ministerial Conference on the TRIPS Agreement adopted on 17 June 2022

Directly to the Position Statement (PDF).