Know-how as the subject matter of a licence agreement under competition law of the European Union and the Republic of Serbia

This paper analyzes know-how as the subject matter of a license in the context of competition law of the European Union and the Republic of Serbia. Competition law of the European Union (EU) thoroughly addresses the block exemption of licensing agreements from the prohibition of restrictive agreements. Know-how, as the subject matter of a license agreement, must meet clearly defined requirements stipulated in the Technology Transfer Block Exemption Regulation (TTBER) in order for such an agreement to benefit from the safe harbour benefits. A know-how must be secret, substantial and identified. These major characteristics of a know-how are three cumulative conditions which must be met for the concerned package of practical information to qualify as a know-how under a technology transfer agreement (TTBER). In this paper, the author has thoroughly analyzed the key characteristics of know-how from the perspective of EU competition law. On the other hand, Serbian competition law has not yet standardised the institute of block exemption of licensing agreements from the prohibition of restrictive agreements. Block exemption of licensing agreements will be regulated after the adoption of a regulation on block exemption of technology transfer agreements. The Competition Protection Commission prepared the Proposal for a Regulation on technology transfer agreements exempted from the prohibition of restrictive agreements. This Regulation should regulate the conditions for exempting technology transfer agreements from the prohibition, bearing in mind the aforesaid agreements specificities. The subject of analysis in this paper will be the proposed solutions on know-how in the Proposal for a Regulation on technology transfer agreements.