WIPO Journal - World Intellectual Property Organization

220 The WIPO Journal
that the EU competition law, particularly recent case law on major IT giants, is more in line with the
general principles of the TRIPS Agreement in dealing with IP abuse issues. Thus the article will focus
more on the EU competition law in this difficult area.
Generally speaking, the EU does not have a special IP provision in its competition law. 17 The prohibitions
of arts 81 and 82 of the EC Treaty of Rome will equally apply to the exercise of IPRs and the exercise of
any other property right. This means that when a firm with a dominant market position engages in abusive
conduct, such as a tie-in, loyalty rebate or exclusive contractual arrangement specified in the EC Treaty,
“the fact that an IPR is involved will not affect the definition of abuse”. 18 However, given the complexity
of applying competition law in the technology market, the European Commission issued a few specific
regulations and guidelines to facilitate the enforcement of competition law. By virtue of art.81(3) of the
Treaty of Rome (formerly art.85), the EC first enacted the Patent Licensing Regulation in 1984. 19 Later,
in response to the increasing economic importance of know-how and the large number of know-how
licensing agreements being concluded by industry, the EC enacted the Know-how Licensing Regulation
in 1989. 20 These two regulations were then incorporated into the Technology Transfer Block Exemption
Regulation—Commission Regulation 240/1996 (TTBER 1996) in 1996. 21 The TTBER 1996 provides a
detailed guideline on how to apply anti-competition provisions of the Treaty of Rome to certain categories
of technology transfer agreements and applies “both to pure or mixed patent licensing and know-how
agreement”. 22 The legal framework for technology transfer in TTBER 1996 was “form-based and legalistic
in the sense that certain clauses were either exemptible or non-exemptible depending almost entirely on
their form”, including: (1) a whitelist of 26 clauses, which is clearly exemptible under the regulation; (2)
a blacklist of seven clauses which is clearly non-exemptible; and (3) grey clauses (all those which are not
whitelisted or blacklisted) which could be approved or non-opposed under a “quick look procedure” of
the Commission. 23
Later, in 2001, the EC decided to move away from its “form-based and legalistic” approach to a more
economic and effects-based approach (by taking into account the “economic analysis” of possible costs
and benefits, or “efficiencies” of certain restrictions) and conducted a regulatory review on the application
effects of the TTBER 1996. 24 As a direct result of the regulatory review, the EC enacted its new Technology
Transfer Block Exemption Regulation (TTBER 2004)—Commission Regulation 123/2004—in April
2004. 25 The new TTBER offers many advantages, such as: applying to a wider array of IPRs; offering
greater flexibility and longer periods of protection; making a clear distinction between horizontal and
17
Steven D. Anderman, “The Competition Law/IP ‘Interface’: An Introductory Note” in Steven D. Anderman (ed.), The Interface Between Intellectual
Property Rights and Competition Policy (Cambridge University Press, 2007), p.3.
18
Steven Anderman, “The Relationship Between Competition Policy and Intellectual Property Rights, Study Supplement, Recent EU Experience
and IPR Policy Making of Relevant to China” (June 2009), p.10.
19
See Commission Regulation 2349/84 on the application of article 85(3) of the treaty to certain categories of patent licensing agreements [1984]
OJ L219/15.
20
See Commission Regulation 556/89 on the application of article 85(3) of the treaty to certain categories of know-how licensing agreements [1989]
OJ L61/1. See also Denis F. Waelbroeck, “Know-how Licensing and EEC Competition Rules: A Commentary on Regulation No. 556/89”, Antitrust
Bulletin, December 22, 1992.
21
Commission Regulation 240/96 on the application of article 85(3) of the Treaty to certain categories of technology transfer agreements [1996]
OJ L31/2 (TTBER 1996).
22
See also Steven D. Anderman and Hedvig Schmidt, “EC Competition Policy and IPRs” in The Interface Between Intellectual Property Rights
and Competition Policy, 2007, p.82.
23
Anderman and Schmidt, “EC Competition Policy and IPRs” in The Interface Between Intellectual Property Rights and Competition Policy, 2007,
p.83.
24 Anderman and Schmidt, “EC Competition Policy and IPRs” in The Interface Between Intellectual Property Rights and Competition Policy, 2007,
p.84.
25 See European Union’s new Technology Transfer Block Exemption Regulation (TTBER 2004) (Commission Regulation 772/2004 on the application
of article 81(3) of the Treaty to categories of technology transfer agreements [2004] OJ L123/11–17, at http://europa.eu/legislation_smaries/competition
/firms/l26108_en.htm [Accessed March 30, 2011]). The TTBER 2004 replaces Commission Regulation 240/96 on the application of article 85(3) of
the Treaty to certain categories of technology transfer agreements [1996] OJ L31/2.
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited