Pursuant to Article 101(2) TFEU, such agreements shall be automatically void, and also competition authorities such as the European Commission, the Dutch Authority for Consumers and Markets and the Bundeskartellamt can decide to investigate the contracts and impose fines if the contracts show a consistent violation of the TTBER without there being an objective justification.
This is where, for technology licensing agreements, (4) the TTBER and TT-Guidelines come into play.
The previous TTBER (6) and TT-Guidelines (7) have been in place since 2004, and they were due to expire on 30 April 2014.
To understand the different approaches, and especially the TTBER,
one first has to consider the legal environment of the TTBER.
Within this new general framework, on May 1, 2004, the new TTBER
(82) By denying an antitrust exemption to no-repair restrictions like those in Mallinckrodt, the TTBER requires a patentee to argue that a reconditioner is reconstructing the patented product and thus infringing.
These points are reinforced by the definition of a field-of-use license provided in the TTBER and in its accompanying Guidelines.
In sum, the European approach in the TTBER is considerably more demanding than the Federal Circuit's approach.
On the other hand, whereas the TTBER generally "protects" eligible agreements against the application of both Article 81(1) and national competition law, the same does not apply, strictly speaking, with respect to the Guidelines.
The remainder of this article addresses the rules contained in the TTBER (section II) and the Commission's modern approach to analyzing specific kinds of provisions commonly found in technology licenses (section III).
The new Block Exemption ("new TTBER
') will revoke the old TTBER
on 1 May 2004 and will apply to all agreements entered into on or after that date.