Standardization Agreements, Intellectual Property Rights and Anti-Competitive Concerns

Abstract

The relationship between standardization processes, intellectual property rights and competition rules has increasingly become of interest in the recent years. Recent investigations of the European Commission confirm that standardization processes and in particular ownership of IPRs that cover standardized technology might in certain circumstances infringe competition rules.

The article first explores the meaning and different forms of standardization. It then analyses selected parts of the Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, in particular those parts that cover standardisation agreements. The Guidelines have been adopted by the Commission in December 2010 with a view to addressing the anti-competitive concerns stemming from inter alia standardisation agreements (eg, they encourage IPRs holders to disclose their exclusive rights before the adoption of the standard, as well as to give an irrevocable commitment to offer to license the IPR to all parties interested on a fair, reasonable and non-discriminatory terms: so-called FRAND commitment).

The author will then present and comment on different points of view on whether the ownership of IPRs which cover standardized technologies really create market dominance capable of triggering anti-competitive behaviours. Finally, a set of additional solutions proposed by various legal scholars will be highlighted and commented.

Keywords: Standardization, Intellectual Property Rights, Patents, Competition