Innovation and fair competition. SEP holders and the competition concerns in the European Union – implications of the Huawei case
Seppänen, Sara (2017-08-02)
Innovation and fair competition. SEP holders and the competition concerns in the European Union – implications of the Huawei case
Seppänen, Sara
(02.08.2017)
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Turun yliopisto
Kuvaus
Siirretty Doriasta
Tiivistelmä
Intellectual property law and competition law have been playing an important role in the field of licensing SEPs. During the standardisation process with the SSO, the patent holder gives its irrevocable commitment to license the patent under fair, reasonable and non-discriminatory terms (FRAND). If and when subsequent licensing negotiations fail with the implementer the SEP holder usually files a suit of infringement and applies for an injunction. The implementer’s response usually comprises a competition law defence relying on FRAND commitment given by the SEP holder. Case law of the CJEU and the Commission together with national litigation have examined the interplay between the SEP holders exclusive patent right and competition rules, both of which have the common goal at the end: incentivising innovation and ensuring free competition.
The thesis seeks to answer the question of why and under what circumstances FRAND-encumbered SEP holder is barred from seeking injunctive relief by the presumption of abuse under Art. 102 TFEU. The question will be analysed in the light of the Huawei ruling delivered by the CJEU. Subsequent national cases applying the negotiation framework set forth by the ruling will be examined. The thesis follows the traditional dogmatic legal approach. The thesis makes use of the primary sources of law in form of EU and other international treaties. Secondary sources of law entail the body of case law from the CJEU and the Commission.
The thesis suggests that the ruling delivered in Huawei has not fully addressed the issue of when and on what terms access to SEPs should be granted while conforming to EU competition law. The Court took a very careful approach in its decision and many open questions remain to be resolved by the national courts. The most pressing questions relate to the determination of FRAND. However, the ruling did establish a negotiation framework against which the conduct of the SEP holder and the implementer may be assessed.
The thesis seeks to answer the question of why and under what circumstances FRAND-encumbered SEP holder is barred from seeking injunctive relief by the presumption of abuse under Art. 102 TFEU. The question will be analysed in the light of the Huawei ruling delivered by the CJEU. Subsequent national cases applying the negotiation framework set forth by the ruling will be examined. The thesis follows the traditional dogmatic legal approach. The thesis makes use of the primary sources of law in form of EU and other international treaties. Secondary sources of law entail the body of case law from the CJEU and the Commission.
The thesis suggests that the ruling delivered in Huawei has not fully addressed the issue of when and on what terms access to SEPs should be granted while conforming to EU competition law. The Court took a very careful approach in its decision and many open questions remain to be resolved by the national courts. The most pressing questions relate to the determination of FRAND. However, the ruling did establish a negotiation framework against which the conduct of the SEP holder and the implementer may be assessed.