Commercially Connected Shorts - 8 October 2025

This week we look at:

• tech - shaping the future of UK Tech Licensing
• cyber - how well do you know your business operating environment?
• lessons from case law - when are breaches capable of remedy? 
• supply chain - our global round up of recent developments

Shaping the future of UK Tech Licensing

On 30 September 2025, the CMA issued its final recommendation to the Secretary of State following consultation and review of the Assimilated Technology Transfer Block Exemption Regulation (‘Assimilated TTBER’).

The Assimilated TTBER provides automatic exemption from the Chapter I prohibition of the Competition Act 1998 (‘CA98’) for certain technology transfer agreements. These agreements typically involve the licensing or assignment of intellectual property rights (such as patents, design rights, software copyrights, and know-how) to produce goods or services.

The UK TTBER currently mirrors the EU TTBER, but both are due to expire on 30 April 2026.  The European Commission is currently consulting on its draft revised EU TTBER and guidelines until 23 October 2025.

Ultimately, the CMA has recommended that the TTBER be replaced with a UK Technology Transfer Block Exemption Order (‘Recommended TTBEO’). This will continue to exempt the same categories of agreements as the TTBER, but with some key changes.

The key changes include:

• Technology markets – new exemption test: Under this test, a technology agreement may benefit from exemption if there are at least three other independently controlled, “real and concrete” alternative technologies that compete with the technology covered by the agreement.

This test aims to make the exemption regime more practical for fast-moving, innovative sectors, where traditional market share calculations may not accurately reflect competitive dynamics and risk discouraging pro-competitive licensing.

The CMA plans to issue guidance to help businesses assess what constitutes a “genuine competing technology” in due course

• CMA powers to withdraw exemption: The Recommended TTBEO provides the CMA with robust powers to investigate, and where appropriate, withdraw the benefit of the block exemption on a case-by-case basis, mirroring equivalent powers in CA98. The CMA expects these powers to be used only in exceptional circumstances.

The CMA may request information from the parties, which must be provided within ten working days. Before withdrawing an exemption, the CMA must issue written notice setting out its proposal, the relevant facts, and reasons. Parties will have an opportunity to respond before a final decision is made.

• Extending the market share grace period from two to three years, allowing more time before the exemption is lost due to market share threshold being exceeded

• Definitions changes to align with UK law and the Vertical Agreements Block Exemption Order (‘VABEO’) and improve legal certainty

The CMA envisages a one-year transitional period following the expiry of the Assimilated TTBER on 30 April 2026. During this period, existing agreements that meet the conditions of the Assimilated TTBER will continue to benefit from its terms until 30 April 2027. After this date, agreements must satisfy the conditions in the Recommended TTBEO to continue benefiting from the block exemption.  Businesses therefore should:

• begin reviewing existing technology transfer agreements to assess whether they will continue to qualify under the new framework. Early action will help avoid disruption and ensure continued compliance
• consider engaging with the EU consultation to help shape the future regulatory landscape. With the UK having already issued its final recommendation and the EU process still ongoing, differences between the two regimes are likely to emerge

With thanks to Jessica Martin, Annabel Borg and Nicole Woo

How well do you know your business operating environment?

On 29 September 2025, the UK National Cyber Security Centre published new guidance on cyber security in Operational Technology (‘OT’) environments.

OT hardware and software is used across industry to manage manufacturing processes and recent high profile cyber breaches reminds businesses of the importance of protecting these environments.  The new guidance encourages businesses to create and maintain a ‘definitive record’ of their OT environment and keeping this accurate and up to date.

Top tips include:

• Identifying the assets and the role played in the business environment according to criticality, exposure, resilience, validation and connectivity
• Reviewing your supply chain and third party providers who connect into your systems – how are they managed and the connections protected? Do you have contractual protections in place to manage external access risks
• The importance of keeping the OT mapping secure and protected
• Start small, most of the information needed to create the definitive record will already be held in policies, manuals, staff knowledge and design documents. Bringing this into one place is the start of building a picture of your operations which you can defend from a cyber security perspective

The guidance is a recommended read for cyber security teams in businesses across industry to ensure they have an accurate holistic picture of their technical operating environments that can be protected via an information security programme.

Lessons from case law – when are breaches capable of remedy?

The recent case of Kulkarni v Gwent Holdings Ltd [2025] EWCA Civ 1206 provides us with a reminder for managing notices to remedy and when breaches are capable of remedy.

The Court of Appeal upheld the High Court's decision that breaches of a Shareholders Agreement (‘SHA’) were material and persistent but capable of remedy and had been remedied effectively.

In this case, the claimant argued that breaches committed were either irremediable or not remedied within the 10 business day period prescribed by the SHA. Gwent contended that the breaches had been remedied and that any breaches were capable of practical redress. They also denied any lasting prejudice caused to the claimant.

The court applied a "practical rather than technical" approach to deciding whether breaches were capable of remedy which included assessing whether the mischief resulting from the breach could be rectified “so that matters are put right for the future”.

The judgment critically examined whether persistent breaches were remediable within the 10 business day period specified by the SHA, as well as whether repudiatory breaches were never capable of remedy. In this case, the SHA specified a notice to remedy process for material and persistent breaches.  Notice to remedy had not been served.  Ultimately, the court considered (i) that where a breach is capable of remedy that notice to remedy should be served and (ii) a repudiatory breach was not incapable of remedy if the contract provided a remedy process.  Clear language in the contract would be required to disapply this (of which there was none).

The court concluded that deliberate conduct (wilfulness), seriousness of breaches and motive may influence whether something is remediable but do not automatically render breaches irremediable unless significant lasting damage is caused.

Key takeaways for drafting and considering responses to a counter party’s breach are:

• consider the prescribed notice periods for breach and remedy and make clear in drafting when these apply and what process should be followed
• if you wish a repudiatory breach to be irremediable and not subject to any contractual remedy process then this needs to be made clear in the contract drafting
• can the breach be rectified for the future without prejudicing one of the parties?

Always remember, termination of a contract is a high-risk area. Termination is usually a strategic decision which involves assessment of the whole context including the commercial and financial consequences, liability exposure and limitations, reputation and relationship management and quantification of loss (which can require expert evidence). This is a bespoke exercise and input from an experienced litigator on this aspect of process is essential.  Our L&DM team can help: Litigation

Global supply chain horizons

The latest edition of our quarterly global supply chain horizons is now available providing you with an update on the key developments from around the world.  We highlight:

• cross border – UK trade measures with emerging countries and the latest UK and EU trade deals
• Asia – developments in China around a national standard for hazardous chemicals in electrical products, new financial support guidelines and amendments to battery technology export restrictions
• Europe – product safety compliance, a stockpiling and medical countermeasure strategy and import / export updates
• UK – addressing late payment culture, tax implications for umbrella companies and sanctions updates
• US – tariff updates and a new bill to ensure safe and toxic free foods

A necessary read for all businesses trading cross border and/or managing supply chain resilience!