The Interface between Competition Law, Patents and Technical Stadards

The waging of ‘patent wars’ – in which the focal point is the assertion of patents that are essential to the implementation of technical standards (‘essential patents’ or ‘SEPs’) – is among the prominent features of today’s litigation landscape. In line with this development, competition authorities strive to ensure that the market power obtained by holding SEPs is not abused to the detriment of effective competition. It has indeed been shown that a single SEP is sufficient to block third parties from implementing the standard to which it relates, thus effectively excluding competitors from the market.

This systematic analysis lucidly details the role played by competition law in ensuring that holders of SEPs do not unduly exploit their advantage. The author describes how market power, often amounting to dominance, is obtained by proprietors of SEPs, and then proceeds to set out the framework under which the legality of standardization agreements must be assessed, finally highlighting the role of competition law in preventing patent-related abuse arising after a standard is adopted.

Among the often complex issues clearly explained are the following:

• technical standards as drivers of innovation and consumer welfare;

• conditions governing the standard-setting process;

• the concepts of ‘patent hold-up’ and ‘patent ambush’;

• refusal to license;

• establishing deception ex ante and abuse ex post; and

• availability of injunctive relief.

In addition to drawing on all relevant EU competition laws and the Commission’s guidelines, the analysis extends when applicable to case law of EU Member States and to pertinent US sources, including literature, case law, and Federal Trade Commission documents.

This book achieves a number of important goals. It explores how Articles 101 and 102 TFEU have been applied, and how it is likely that they will be applied, to prevent, identify, and sanction patent-related abuse in the context of technical standards. It underscores the necessity for a sound legal framework capable of guiding the conduct of patentees and providing an incentive to participate in formal standard-setting activities in order to unlock the economic potential of standardization. It provides guidance to stakeholders, policymakers, and courts on how the current competition law regime applies to technical standards and, where gaps exist, suggests the most likely interpretation of the applicable law. For these reasons and more it will prove to be of great value to lawyers, business persons, and officials working at this crucial nexus of competition law and patent law.