European Union Competition Law, Intellectual Property Law and Standardization

25 Pages Posted: 19 Apr 2016

See all articles by Damien Geradin

Damien Geradin

Geradin Partners; Tilburg Law & Economics Center (TILEC); University of East Anglia (UEA) - Centre for Competition Policy; University College London - Faculty of Laws

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Date Written: April 15, 2016

Abstract

This paper provides an overview of the efforts of the European Commission to identify and, when necessary, challenge anticompetitive behaviour with respect to standardization and the licensing of standardized technologies, as well as the case-law of the CJEU on the same subject. The paper starts by discussing the 1992 Communication on Intellectual Property Rights and Standardization, which was the first important contribution of the Commission on the complex interface between standardization, intellectual property and competition law. It then analyses the first major investigations that the Commission made into the licensing conduct of SEP holders, i.e. the proceedings against Rambus and Qualcomm. Next, it discusses the 2010 Commission Guidelines on horizontal cooperation agreements, which contain a chapter dedicated to the application of EU competition rules to standardization agreements. The paper then examines how the Commission has dealt with mergers involving firms holding large SEP portfolios, such as its Google/MMI and Microsoft/Nokia decisions respectively adopted in 2012 and 2013. The paper also analyses the Commission decisions of 2014 against Motorola and Samsung regarding the use of injunctions by SEP holders to enforce their patents against standard implementers. It also analyses the Huawei v. ZTE judgment adopted by the CJEU in 2015, in which the CJEU was asked to determine the circumstances in which SEP holders could seek injunctions against standard implementers without breaching Article 102 TFEU. The paper then discusses several forms of licensing or litigation conduct, which can be problematic under EU competition law, but which have not yet been dealt with by the EU courts or the Commission. Finally, the paper concludes.

Keywords: Competition, Antitrust, intellectual property, standardization, FRAND, injunctions, patent ambush, royalties

JEL Classification: K21, K41, L12, L40, L63, L96

Suggested Citation

Geradin, Damien, European Union Competition Law, Intellectual Property Law and Standardization (April 15, 2016). Available at SSRN: https://ssrn.com/abstract=2765549 or http://dx.doi.org/10.2139/ssrn.2765549

Damien Geradin (Contact Author)

Geradin Partners ( email )

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Tilburg Law & Economics Center (TILEC)

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University of East Anglia (UEA) - Centre for Competition Policy ( email )

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University College London - Faculty of Laws ( email )

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