Injunctions for Frand-Pledged Standard Essential Patents: The Quest for an Appropriate Test of Abuse Under Article 102 TFEU

46 Pages Posted: 23 Dec 2013

See all articles by Nicolas Petit

Nicolas Petit

University of Liege - School of Law; Hoover Institution

Date Written: December 23, 2013

Abstract

This paper discusses the legal test under which owners of Standard Essential Patents (SEPs) who have pledged to grant licences to those SEPs on Fair Reasonable and Non-Discriminatory (FRAND) terms can be held guilty of an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) by seeking, or threatening to seek, injunctions against unlicensed implementers of their technology.

To that end, we use the theoretical framework described in a previous paper on rule-making in EU competition law (Petit, 2012). First, we sift through the various tests of abuse potentially applicable in positive EU competition law (I). Second, we show that an objective criterion should command the selection of a test of abuse, and suggests using the notion of ‘consistency’ (II). Third, we rank the applicable tests of abuse on grounds of consistency (III). Fourth, our paper generalizes those results to propose a framework for the assessment of new forms of conduct under Article 102 TFEU (IV).

Keywords: antitrust, patents, courts, FRAND, injunctions, abuse, monopolization, article 102

JEL Classification: K21, L40, L41, O32, O34, O38

Suggested Citation

Petit, Nicolas, Injunctions for Frand-Pledged Standard Essential Patents: The Quest for an Appropriate Test of Abuse Under Article 102 TFEU (December 23, 2013). Available at SSRN: https://ssrn.com/abstract=2371192 or http://dx.doi.org/10.2139/ssrn.2371192

Nicolas Petit (Contact Author)

University of Liege - School of Law ( email )

B-4000 Liege
Belgium

Hoover Institution ( email )

Stanford, CA 94305
United States

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