对欧盟关于技术转让区块豁免条例和技术转让指南修订草案的评论（英）

COMMENTS OF ITIF CONTENTS Introduction................................................................................................................................................... 2Clarification of TTBER Market Share Thresholds for Technology Markets...................................................3New Guidance on Data Licensing..................................................................................................................3Modification of the Guidance on Technology Pools.......................................................................................4New Guidance on Licensing Negotiation Groups (LNGS).............................................................................4Conclusion.....................................................................................................................................................6 INTRODUCTION On September 11, 2025, the European Commission (Commission) launched a public consultation onpublished drafts of the revised Technology Transfer Block Exemption Regulation (TTBER) and TechnologyTransfer Guidelines (Draft Revised Guidelines).1The TTBER, which exempts certain technology transferagreements from antitrust scrutiny under Article 101(1), as well as the Draft Revised Guidelines, whichprovide important guidance on how the TTBER will be applied, are key parts of the Commission’s approachto the critical area involving the intersection of antitrust and intellectual property (IP) rights.2 The consultation is part of a multi-year review that included both an evaluation phase and ongoing impactassessment phase where the Commission gathered evidence and solicited stakeholder feedback on its TTBERregime.3As the Commission has explained, the revision “aims to adapt the rules to reflect recent marketdevelopments and case law by the Court of Justice of the European Union, as well as to provide legal certaintyfor companies wishing to enter into technology transfer agreements.”4 The Information Technology and Innovation Foundation (ITIF), the world’s top-ranked science andtechnology policy think tank, greatly appreciates the opportunity to respond to the Commission’s publicconsultation. In general, ITIF believes that the proposed revisions involving TTBER market share thresholds,data licensing, and technology pools may prove beneficial toward enhancing innovation and competition intechnology licensing. However, ITIF is concerned that the Draft Revised Guidelines’ new safe harbour forlicensing negotiation groups (LNGs) would, unless additional conditions are included, disrupt the delicatebalance between IP holders and implementers, as well as provide an avenue for protectionist enforcementwithin EU competition policy. CLARIFICATION OF TTBER MARKET SHARE THRESHOLDS FOR TECHNOLOGY MARKETS Article 3 of the TTBER makes clear that the block exemption will only apply if certain market sharethresholds are met.5However, as the Commission has explained, “many stakeholders reported practicaldifficulties in applying the TTBER’s market share thresholds for technology markets.”6In response, theCommission has proposed two main changes for the TTBER market share thresholds: first, in recital 13,confirming that technologies with no current sales have zero market shares; and second, that when marketshares rise above the thresholds over the life of the agreement, the grace period for which the block exemptionstill applies will be extended from two to three years.7 These changes are likely to both improve administrability and reduce error costs associated with enforcing theTTBER. Specifically, by confirming that technologies with no current sales have zero market shares, theCommission is not just formalizing guidance from an earlier communication, but interpreting the TTBER ina way that is consistent with the dynamic and often fraught nature of the innovation process—even veryvaluable IP with a high share in a technology market may not, for a variety of reasons, ultimately be deployedin a downstream innovation.8Similarly, even when IP is implemented in a product that gains a high marketshare, the dynamic nature of competition in high-tech markets can make even a short-term dominantposition fleeting. As such, the shift to a three-year grace period better ensures that scrutiny under Article101(1) applies to technologies that have resulted in the creation of a significant and durable market position. NEW GUIDANCE ON DATA LICENSING The current TTBER and Technology Transfer Guidelines provide that an exemption from Article 101(1)applies to agreements that involve the transfer of technology rights and certain associated know-how,encompassing patents, utility models, design rights, and other forms of IP. But, as the Commission notes,“data licensing agreements are increasingly common, and some stakeholders called on the Commission toprovide guidance in this area, as the current TTBER and Guidelines do not include specific guidance.”9Inresponse, the Comm