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Ten Years of DG Competition Effort to Provide Guidance on the Application of Competition Rules to the Licensing of Standard-Essential Patents:
Where Do We Stand?

Damien Geradin

Tilburg Law & Economics Center (TILEC); University College London - Faculty of Laws

January 21, 2013

One of the most intractable competition issues for the European Commission (the “Commission”) over the last ten years has been to define the circumstances in which the licensing conduct or litigation strategy of a standard-essential patent (often referred to as “SEP”) holders amount to an abuse of a dominant position in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU). This issue has been particularly difficult to handle, not only because of the complex nature of the legal and economic questions it raises, but also because of the significant business issues at stake. Hundreds of millions of dollars may be at stake in licensing negotiations.

The enforcement of SEPs has made headlines in the context of the “smartphone war”, where the main device manufacturers (Google Motorola, Samsung, HTC, Nokia, etc.) have been litigating heavily in court. For instance, the patent dispute between Apple and Samsung has generated over 50 lawsuits in a variety of jurisdictions. Some of these manufacturers have also filed competition complaints on both sides of the Atlantic, as well as in other jurisdictions. These complaints have, in turn, triggered investigations into the licensing conduct and litigation strategy of several SEP holders, which will be discussed below.

Against this background, the purpose of this paper is to address the competition law issues that may be raised by the licensing conduct and/or enforcement strategy of SEP holders. Section II reviews the Commission’s efforts in recent years to address the competition law concerns raised by SEPs. It will be shown that the Commission has used a variety of approaches to attempt to set some principles regarding the licensing of SEPs. The Commission still needs to create a precedent, which is probably its intention by sending a Statement of Objections to Samsung in December 2012. Section III contains a brief conclusion.

Number of Pages in PDF File: 20

Keywords: Standardization, standard essential patents, SEPs, antitrust, competition law, intellectual property, hold up, licensing, royalties, EU law, patent war, smartphone

JEL Classification: K21, K41, L41, L96

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Date posted: January 23, 2013  

Suggested Citation

Geradin, Damien, Ten Years of DG Competition Effort to Provide Guidance on the Application of Competition Rules to the Licensing of Standard-Essential Patents: Where Do We Stand? (January 21, 2013). Available at SSRN: http://ssrn.com/abstract=2204359 or http://dx.doi.org/10.2139/ssrn.2204359

Contact Information

Damien Geradin (Contact Author)
Tilburg Law & Economics Center (TILEC)
Tilburg, 5000 LE
University College London - Faculty of Laws ( email )
Gower St
London WC1E OEG, WC1E 6BT
United Kingdom
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