The IEEE-SA Patent Policy Update Under the Lens of EU Competition Law
51 Pages Posted: 2 Dec 2016
Date Written: December 1, 2016
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: Suggested Citation