The Regulation (EU) no. 877/2026 (TTBER, Technology Transfer Block Exemption Regulation), adopted on April 16, 2026, and in effect from May 1°, 2026, to April 30, 2038, and Commission Communication C/2026/2323 (Guidelines), provide rules for two types of technology transfer agreements; i) a technology rights licensing agreement entered into between two undertakings for the purpose of the production of contract products by the licensee and/or its sub-contractors; ii) an assignment of technology rights between two undertakings for the purpose of the production of contract products where part of the risk associated with the exploitation of the technology remains with the assignor (e.g. payments conditions by the sales of the contract products). The Regulation exempts technology transfer agreements from the prohibition on anti-competitive agreements set forth in Article 101 of the TFEU (Treaty for the Functioning of European Union).
The new TTBER basically reflects the structure of the previous one (Regulation (EU) No 316/2014). The relevant changes introduced by Regulation (EU) no. 877/2026 and Commission Communication C/2026/2323 are:
- licensing agreements for certain types of data, namely databases protected by copyright or sui generis rights;
- settlement agreements containing compensation clauses for restrictions (pay-for-restriction) or for delaying market entry (pay-for-delay), which often do not involve the transfer of technological rights but are based on a transfer of value from one party in exchange for a limitation on the other party’s market entry and/or expansion. In particular, in the pharmaceutical sector, a company holding one or more patents (the original drug manufacturer) may make payments to a potential competitor (a generic drug manufacturer) in order to delay its market entry, typically after a patent dispute;
- technology pools are agreements whereby two or more parties create a package of technologies that is licensed to pool participants and third parties, especially in the framework of SEP (standard essential patents) and FRAND (fair, reasonable and non-discriminatory) licenses. In terms of structure, technology pools may take the form of simple agreements among a limited number of parties or more complex agreements, in which the organization of the licensing of the pooled technologies is entrusted to a separate entity, such as, for example, an intermediary platform. In both cases, the pool may allow licensees to access the technology covered by the pool on the basis of a single license;
- Licensing Negotiation Groups (LNGs). Licensing Negotiation Groups are agreements under which technology users agree to jointly negotiate the terms of technology licenses to be obtained from the holders of rights on the technologies, especially in the framework of SEP (standard essential patents) and FRAND (fair, reasonable and non-discriminatory) licenses.
Article by Marco Venturello (VENTURELLO E BOTTARINI, AVVOCATI)
