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Standard-Essential Patents: The International Landscape

Public Domain, The ABA Section of Antitrust Law Intellectual Property Committee Newsletter, Spring 2014

11 Pages Posted: 4 Oct 2015  

Koren W. Wong-Ervin

George Mason University, Scalia Law School - Global Antitrust Institute

Date Written: Spring 2014

Abstract

Investigations and litigation involving standard-essential patents (SEPs) have begun to spring up around the globe. In February 2014, the Korean Fair Trade Commission issued its first decision on the issue of whether seeking injunctive relief on a FRAND-encumbered SEP constitutes a violation of Korea’s Fair Trade Law, concluding that Samsung’s injunction claims against Apple on SEPs related to 3G mobile communication technology do not constitute an abuse of dominance or unfair trade practice. The KFTC also rejected Apple’s contention that such conduct constitutes a refusal of access to essential facilities, concluding that FRAND-encumbered SEPs do not constitute essential facilities. In October 2013, the Guangdong Higher People’s Court issued a decision in Huawei v. InterDigital, affirming the lower court’s FRAND royalty determination of 0.019 percent of the sales price for each Huawei product for InterDigital’s (IDC’s) 2G, 3G, and 4G Chinese essential patents. China’s National Development and Reform Commission (NDRC) is currently considering commitments offered by IDC in an investigation into whether IDC abused its dominant position by seeking discriminatorily high royalties on Chinese essential patents. The Competition Commission of India (CCI) recently opened two related investigations against Ericsson, alleging that it violated its FRAND commitments by imposing discriminatory and “excessive” royalty rates and using Non-Disclosure Agreements (NDAs). In its investigation order, the CCI stated that “forcing” a party to execute [an] NDA and “imposing excessive and unfair royalty rates” constitutes “prima facie” abuse of dominance and violation of section 4 of the Indian Competition Act, as does “[i]mposing a jurisdiction clause debarring [licensees] from getting disputes adjudicated in the country where both parties were in business.” This article summarizes the approaches of the countries that have addressed conduct involving SEPs, focusing on recent developments.

Keywords: FRAND, international, SEPs, standard-essential patents, China, Korea, India

JEL Classification: K21

Suggested Citation

Wong-Ervin, Koren W., Standard-Essential Patents: The International Landscape (Spring 2014). Public Domain, The ABA Section of Antitrust Law Intellectual Property Committee Newsletter, Spring 2014. Available at SSRN: https://ssrn.com/abstract=2668602

Koren W. Wong-Ervin (Contact Author)

George Mason University, Scalia Law School - Global Antitrust Institute ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
310-779-0982 (Phone)

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