Samantha Schreiber is a JD candidate at Osgoode Hall Law School.
The Max Planck Institute for Intellectual Property, Competition and Tax Law (the “Institute”) has published comments on two draft instruments (1) the Draft Commission Block Exemption Regulation on Research and Development Agreements (the “Draft R&D Regulation”) and (2) the Draft Guidelines on Horizontal Cooperation Agreements (the “Draft Guidelines”). The European Commission is currently undertaking public consultation on these draft instruments.
The Max Planck Institute for Intellectual Property, Competition and Tax Law is a research institute within the Max Planck Society for the Advancement of Arts and Science. The full title of the Comment is “Comments of the Max Planck Institute for Intellectual Property, Competition and Tax Law on the Draft Commission Block Exemption Regulation on Research and Development Agreements and the Draft Guidelines on Horizontal Cooperation Agreements”. The Comment is co-authored by Professor Josef Drexl, the Director of the Institute and a member of IP Osgoode’s International Advisory Council.
Both the Draft R&D Regulation and the Draft Guidelines relate to the application of Art. 101(3) of the Treaty on the Functioning of the European Union (TFEU). Article 101(1) prohibits agreements, decisions and practices that would create unfair competition within the European Union. Article 101(3) provides an exemption for agreements, decisions and practices that improve the production or distribution of goods, or promote technical or economic progress. Thus, of interest in the Comment is the application of this exemption to R&D projects.
While the Comment is supportive of the Draft R&D Regulations and the Draft Guidelines, it also pinpoints areas where the instruments may be improved. In addition, the Comment suggests that the Draft Guidelines do not comprehensively respond to the technological demands of modern-day intellectual property industries. Please read the Comment for details.