Executive Summary
- What’s new: The EU has proposed guidance on an antitrust safe harbour for groups seeking to jointly negotiate terms for technology implementers (licensing negotiation groups (LNGs)).
- Why it matters: This is the first time that the European Commission (EC) has proposed a safe harbour for LNGs. The proposal follows informal guidance letters of the EC and German Bundeskartellamt (BKartA) permitting the German automotive industry to negotiate jointly for standard essential patents (SEPs) for communications technology. The informal guidance letters have drawn criticism from the US Department of Justice (DOJ).
- What to do next: Interested parties have until 23 October 2025 to comment on the published drafts.
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In the EU, the technology transfer block exemption regulation No 316/2014 of 21 March 2014 (TTBER)1 exempts certain technology transfer agreements from the prohibition against anticompetitive agreements set out in Article 101 of the Treaty on the Functioning of the European Union (TFEU) (the equivalent of Section 1 of the Sherman Act). The TTBER exempts technology transfer agreements that meet its market share thresholds and provisions on permitted types of restrictions.
The TTBER is accompanied by technology transfer guidelines (Guidelines)2
that provide guidance on a range of IP licensing arrangements that extend beyond the scope of straightforward license agreements. This includes the application of EU competition law to technology pools for licensing SEPs.
In September 2025, the EU consulted on a revised TTBER and Guidelines that update the guidance on technology pools and, for the first time, propose a safe harbour for LNGs.3
Technology
Pools
Pools
The Guidelines cover technology pools — arrangements whereby companies assemble a package of technology4
that is then licensed to contributors to the pool and/or third parties. The guidance sets out qualitative conditions under which the parties would not be exposed to competition-law risks (a “soft” safe harbour).5
The Guidelines state that technology pools can produce pro-competitive effects, in particular by reducing transaction costs. Pools can allow for one-stop licensing and facilitate implementation of pro-competitive standards.6 Conversely, pools may restrict competition, for example, pooling substitute technologies that should otherwise compete or establishing a
de facto
industry standard to foreclose alternative technologies.7
The current Guidelines and their previous iterations have provided an antitrust safe harbour for the operation of technology pools, particularly in relation to: (i) pooling complementary rather than competing technologies; (ii) non-tying of nonessential technology; and (iii) fair, reasonable and nondiscriminatory (FRAND) terms.8 These provisions are not the same as the EC’s recently abandoned proposal for a SEP Regulation, which also aimed to promote transparency and FRAND terms.9
The proposed revisions seek to address concerns expressed regarding: (i) transparency, (ii) verification of the essential nature of a patent to implement a standard and (iii) safeguards against licensees paying more than once for the same right (“double-dipping”). Double-dipping can occur when licensees/implementers have obtained a licence both through bilateral agreements and through a pool.10
The draft revised Guidelines propose slight adjustments by adding the following requirements:
- Disclosure of the technology rights included in the pool.11
- Disclosure of the methodology to verify essentiality and the results of the essentiality assessments.12
- Terms of the pool that ensure licensees are not charged more than once for the same technology rights.13
New
Guidance on LNGs
Guidance on LNGs
The draft revised Guidelines provide guidance on the competitive assessment of joint negotiation of IP licenses.14
They describe the possible pro-competitive and anticompetitive effects of LNGs. LNGs can facilitate technology licensing by reducing transaction costs,15 promoting more informed negotiations16 and helping to address a first-mover disadvantage,
i.e., where implementers are unwilling to negotiate a technology transfer agreement before their competitors have done so.17 However, LNGs can also create excessive bargaining power for participating implementers,18 facilitate the exchange of commercially sensitive information between competing technology implementers,19 facilitate coordination20 and collusion between implementers or foreclose competing implementers in downstream product markets.21
The draft revised Guidelines provide for a soft safe harbor under the following conditions:
- open participation;
- transparency of the LNG rules;
- limited scope (to the joint negotiation of the terms of technology licences);
- limited exchanges of information (to what is strictly necessary and proportionate);
- voluntary participation for both sides of the market;
- no restrictions on the technology holders’ ability to enter into agreements with third parties; and
- the negotiated licensing fees must not exceed 10% of the sale price of the products incorporating the technology.22
While LNGs have been litigated in the US,23 limited decisional practice in this area has emerged within the EU. In 2024, the BKartA reviewed the German Automotive Licensing Negotiation Group.24 This was a joint negotiation group between BMW, Mercedes-Benz, Thyssenkrupp and VW for SEP mobile communications standards technology. The BKartA concluded the LNG was lawful under certain conditions: (i) if limited to general mobile communication standards such as 4G/LTE, 5G, and 6G that are not specific to the automotive sector; (ii) if open to new joiners, including automotive parts suppliers; (iii) if voluntary (so that patent owners and pools can choose whether to negotiate with the group, as opposed to with individual technology users or implementers, but are under no obligation to do so); and (iv) if safeguards are in place to avoid information exchange among group members beyond what is reasonably necessary to implement the group’s legitimate objectives. In July 2025, the EC adopted an informal guidance letter regarding the same LNG, which found that the LNG would be lawful under similar conditions.25
Responses
to the Proposals
to the Proposals
Interested parties have until 23 October 2025 to comment on the published proposal drafts. The EC will adopt the final TTBER and Guidelines early in 2026, before the current TTBER expires.
The proposed guidance on patent pools and LNGs are likely to engender strong views among IP owners and implementers as well as from other agencies, as illustrated by the DOJ’s Deputy Assistant Attorney General Dina Kallay’s commentary earlier this month describing the EC letter on the automotive LNG as “unfortunate.”26 Kallay expressed difficulty reconciling the EC letter “with sound principles of competition law on either side of the Atlantic.”27 She also referenced
Global Music Rights, LLC et al v.
Radio Music License Committee, Inc., where an entity that negotiates licenses with performing rights organization on behalf of radio stations was alleged to constitute a buyers cartel. The DOJ submitted a Statement of Interest in this case explaining why buyers cartels amount to
per se
illegal price-fixing. This is therefore potentially an area where the EC may refine its guidance in light of feedback received.
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1 Commission Regulation
(EU) No 316/2014 of 21 March 2014 on the Application of Article 101(3) of the
Treaty on the Functioning of the European Union to Categories of Technology
Transfer Agreements.
2
Guidelines
on the Application of Article 101 of the Treaty on the Functioning of the
European Union to Technology Transfer Agreements
2014/C 89/03.
3
EC press release “Commission
Invites Comments on Draft Revised EU Competition Rules for Technology Transfer
Agreements” (10 Sept. 2025).
4
The technologies in the pool often support, in whole or in part, a de facto or de jure industry standard.
5
See section 4.4.1. of the current Guidelines.
6
Paragraph 245 of the Guidelines and paragraph 266 of the draft revised Guidelines.
7
Paragraph 246 of the Guidelines and paragraph 267 of the draft revised Guidelines (“The existence of the standard, combined with the pool, may make it more difficult for new technologies to enter the market (…)”).
8
Paragraph 261 of the Guidelines.
9 EC press release “European
Commission Withdraws Proposals for Standard Essential Patents Regulation” (21 Feb. 2025).
10
See also the EC’s
Support Study for the Evaluation of the Technology Transfer Block Exemption Regulation, p. 215 and 230. (“It is reported that there are significant problems with SEP pools. In the audio and video codec industry, companies are pressured by patent pool administrators to sign multiple agreements for various standards, leading to double-dipping and double collection of royalties. Lack of transparency regarding administrators’ relationships with SEP holders and royalty distribution raises concerns about collusion and unfair treatment of smaller players (licensor/licensee). (…) The current TTGs [Guidelines] do not address the issue of ‘double dipping’ of royalties, which has been deemed not FRAND by European courts. Patent pools lack clear provisions for dealing with duplicative royalty rates, leaving licensees to seek individual rebates. Updates to the TTGs [Guidelines] should reflect European court rulings on FRAND terms and the limitation of injunctions in SEP licensing, ensuring that SEP licenses are available to all third parties (two licensors/licensees).”)
11
Paragraph 285(b) of the draft revised Guidelines.
12
Paragraph 285(c) of the draft revised Guidelines.
13
Paragraph 285(f) of the draft revised Guidelines.
14
Section 4.5 of the draft revised Guidelines.
15
By reducing the number of individual negotiations between technology holders and implementers.
16
By pooling the expertise of implementers, e.g., concerning the validity and value of technology rights.
17
Paragraph 300 of the draft revised Guidelines.
18
This would enable implementers to force technology holders to accept subcompetitive licensing terms (below FRAND in the case of SEPs), which may disincentivise innovation by technology holders.
19
This would result in a loss of strategic uncertainty, contrary to the principle that each undertaking must determine its conduct on the market independently.
20
By increasing commonality of costs between competing technology implementers.
21
Paragraph 301 of the draft revised Guidelines.
22 Paragraph 326 of the draft revised Guidelines.
23
See, for example, Cascades Computer Innovation v. Rpx Corp., No. 16-15782 (9th Cir. 2017) (alleging that a defensive patent aggregator conspired with mobile phone manufacturers to drive down patent licensing fees, albeit dismissed on IP grounds).
24
BKartA press release “BKA,
BMW, Mercedes, Thyssenkrupp and VW Can Negotiate Jointly for the Acquisition
of Certain Technology Licenses” (10 June 2024).
25 See the EC informal
Guidance Letter of 9 July 2025 in Case AT.40979 – Guidance – Automotive LNG, paragraph 30. The EC’s conditions are as follows: (i) the LNG and its negotiation groups negotiate licences for standards that are not automotive-specific and in respect of which the combined market share of the LNG members does not exceed 15% of the total demand for the SEPs or standards concerned; (ii) the LNG and its negotiation groups are open to other interested undertakings in the automotive sector, both car manufacturers and component suppliers; (iii) negotiations with the LNG and its negotiation groups are voluntary for SEP holders (individual SEP holders or SEP pools), meaning that SEP holders are free to enter into a negotiation and to terminate it at any time; (iv) exchanges of information between members are limited to what is objectively necessary, and no commercially sensitive information is shared between members of negotiation groups and, more generally, between the members of the LNG.
26
MLex, “EU
Guidance on Carmakers’ SEP Licensing ‘Unfortunate,’ US DOJ’s Kallay Says” (10 Oct. 2025).
27
Ibid. Kallay emphasized that the letter was issued under a 2025 European automotive plan, which seems to suggest the EC is not really addressing a competition law matter but more “a trade law or national champion” effort. “It is competition that makes companies stronger, not trying to protect them through trade measures, and [so …] it’s an unfortunate development,” she concluded.
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