The IEEE-SA Patent Policy Update Under the Lens of EU Competition Law

51 Pages Posted: 2 Dec 2016

See all articles by Nicolo Zingales

Nicolo Zingales

University of Leeds - School of Law; Tilburg Law and Economics Center (TILEC); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Stanford University - Stanford Law School Center for Internet and Society

Olia Kanevskaia Whitaker

Tilburg University, Tilburg Law and Economics Center (TILEC), Students

Date Written: December 1, 2016

Abstract

In 2015, the Institute of Electrical and Electronics Engineers (IEEE) Standardization Association made some controversial changes to its patent policy. The changes include a recommended method of calculation of FRAND royalty rates, and a request to members holding a standard essential patent (SEP) to forego their right to seek an injunction except under limited circumstances. The updated policy was adopted by the IEEE Board of Directors after obtaining a favorable Business Review Letter by the US Department of Justice, which found any potential competitive harm from the policy to be outweighed by potential pro-competitive benefits.

In this paper, we examine whether the same favorable conclusion would be reached under EU competition analysis. After discussing the role of patent policies of Standard-Setting Organizations (SSO) and the rules and principles applicable to the IEEE’s activities, the paper concludes that standardization agreements based on the updated policy may constitute a violation of article 101 TFEU.

Keywords: standard-setting organizations, standard-essential patents, licensing policies of SSOs, EC guidelines on horizontal cooperation, horizontal agreements

JEL Classification: K21, K39, L15, L24, L0, L41, L44, O31, O34

Suggested Citation

Zingales, Nicolo and Kanevskaia Whitaker, Olia, The IEEE-SA Patent Policy Update Under the Lens of EU Competition Law (December 1, 2016). TILEC Discussion Paper No. 2016-031. Available at SSRN: https://ssrn.com/abstract=2878623 or http://dx.doi.org/10.2139/ssrn.2878623

Nicolo Zingales (Contact Author)

University of Leeds - School of Law ( email )

Leeds LS2 9JT
United Kingdom

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Olia Kanevskaia Whitaker

Tilburg University, Tilburg Law and Economics Center (TILEC), Students ( email )

Warandelaan 2
Netherlands

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