“The question of how companies should approach technology transfer frequently gives rise to uncertainty. Take, for example, a manufacturer using a patented production process under a license agreement with the patent holder; the agreement stipulates that the manufacturer may not sell its products to a specific customer group reserved for the patent holder itself. Such an arrangement may be permissible under EU antitrust law governing technology licensing.
The Technology Transfer Block Exemption Regulation (TTBER) is the central set of rules within this area of EU antitrust law, and it has recently been amended. Through this regulation, the EU Commission exempts certain technology transfer agreements from the prohibition on anti-competitive agreements. Technology transfer agreements—such as the one in the example above—include patent license agreements that enable licensees to manufacture a patented product or use a patented process.
Compared to the predecessor regulation from 2014, the revised version introduces few changes; consequently, license agreements that already complied with the "old" TTBER are unlikely to require modification.
For the companies involved, the antitrust risks lie less in the imposition of heavy fines by competition authorities and more in the potential invalidity of individual clauses or even the entire license agreement.
Why, then, should companies use the entry into force of the TTBER as an opportunity to review their licensing practices? There are three good reasons for doing so: the EU Commission has also updated its accompanying guidelines.
First, it has provided guidance on the economically significant topic of data licensing—specifically regarding the circumstances under which the TTBER can be applied either directly or by analogy. This applies when the data itself constitutes know-how or a database protected by copyright or *sui generis* rights. Sui generis is a Latin phrase that means "of its own kind" or "in a class by itself". It describes something unique, singular, or unusual that does not fit easily into standard categories or conventional systems.
Second, it has [updated] its existing rules regarding the antitrust admissibility of technology pools—i.e., the bundling of assets such as patents—have been tightened and supplemented with three new requirements.
Companies participating in technology pools, for instance, will need to keep this in mind. They will have to verify, for example, that the double charging of licensing fees for one and the same patent is effectively precluded, prevented from happening.
Thirdly, the European Commission has included guidance on the assessment of "Licensing Negotiating Groups" (LNGs) in its guidelines. An LNG is understood as a form of cooperation between licensees when negotiating licenses with a licensor—whether that licensor is an individual patent holder or a patent pool.
Companies participating on the licensee side are strongly advised to review their cooperation to ensure it meets the EU Commission's requirements. If it does not, there is a risk that antitrust authorities could view the LNG as an unlawful purchasing cartel and impose fines.
Key requirements include the need for the LNG to operate openly vis-à-vis licensors and to govern the cooperation through a contract. Information exchange between participating companies must be limited to what is strictly necessary. A market share threshold of 15 percent provides companies with additional certainty regarding the antitrust assessment of their LNG. Conversely, if the cooperation consists merely of exchanging information on the status of individual negotiations with the licensor, it constitutes a prohibited purchasing cartel.
The author is a partner at the law firm CMS.” [1]
1. Neue Regeln zum Technologietransfer: Die EU hat die Vorgaben für Patentlizenzverträge geändert. Worauf man jetzt achten sollte. Frankfurter Allgemeine Zeitung; Frankfurt. 03 June 2026: 18. ROLF HEMPEL
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