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Anderman, Steven D. --- "Substantial Convergence: The US Influence on the Development of the Regulatory Framework for IP Licensing in the EC" [2006] ELECD 528; in Marsden, Philip (ed), "Handbook of Research in Trans-Atlantic Antitrust" (Edward Elgar Publishing, 2006)

Book Title: Handbook of Research in Trans-Atlantic Antitrust

Editor(s): Marsden, Philip

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845421816

Section: Chapter 11

Section Title: Substantial Convergence: The US Influence on the Development of the Regulatory Framework for IP Licensing in the EC

Author(s): Anderman, Steven D.

Number of pages: 21

Extract:

11 Substantial convergence: the US influence
on the development of the regulatory
framework for IP licensing in the EC
Steven D. Anderman1


Introduction
The regulatory framework of EC competition policy for intellectual prop-
erty licensing has long been influenced indirectly by developments in US
antitrust policy. Prior to the first Patent Block Exemption Regulation in
1984,2 the Commission's policy was influenced by the `Nine No-Nos' policy
of the US Department of Justice Antitrust Division in respect of patent
licensing. And, throughout each stage of the era of the formalistic Block
Exemption Regulations, including the unified Technology Transfer BER of
1996, the Commission's policy was partially influenced by the more eco-
nomically realistic approach of US antitrust law as it responded to the
pointed criticisms of the Chicago School. With the introduction of the new
`modernized' TTBER and Guidelines in 2004, however, the EC regulatory
framework for IP licensing has been more substantially aligned with the
Antitrust Guidelines to the Licensing of Intellectual Property produced by
the US Department of Justice and the Federal Trade Commission in 1995.3
This convergence between the USA and the EU on issues relating to the
assessment of `restrictions on competition' is immediately noticeable in the
substantive rules of the TTBER and Guidelines. The adoption of different
regulatory regimes for vertical and horizontal licensing agreements, in
terms both of market share limits and of hard core restrictions, offers
obvious evidence of a more economic approach. The degree of conver-
gence may ...