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

Getulio Vargas Foundation (FGV)

Olia Kanevskaia Whitaker

Utrecht School of Law ; Centre for IT & IP Law (CiTiP) KU Leuven ; Tilburg Law and Economics Center (TILEC)

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 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)

Getulio Vargas Foundation (FGV) ( email )

Praia de Botafogo 190
Rio de Janeiro, 22250-900
Brazil

Olia Kanevskaia Whitaker

Utrecht School of Law ( email )

Netherlands

Centre for IT & IP Law (CiTiP) KU Leuven ( email )

Sint-Michielsstraat 6 box 3443
Leuven, 3000
Belgium
2517AC (Fax)

Tilburg Law and Economics Center (TILEC) ( email )

Tilburg
Netherlands

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