Published: December 28, 2017
Publisher: Lexology
In Nov. 29, 2017, the European Commission published its long-awaited guidance (found here) on litigating and licensing standard-essential patents (SEPs). The commission is charged with enforcing the European Union’s competition laws. The communication is part of broader efforts in the EU to bolster European intellectual property rights, and follows a series of similar efforts in the related fields of trademarks and copyrights. In the patent context, readers may also recall the EU’s long push to establish the Unified Patent Court (UPC) — a centralized court for the enforcement of European patents — whose implementation is currently delayed pending ratification by the U.K. and the resolution of a constitutional challenge in Germany.
Driven by a desire to boost internet of things applications, which are predicted to deliver enormous economic gains to developed countries1, the commission set out to provide “a clear, balanced, and reasonable policy” for SEPs in the EU. However, SEP owners and implementers hoping to find in the communication a clear roadmap to fair, reasonable and nondiscriminatory (FRAND) rate determination will find it lacking in that regard. Nonetheless, the guidelines are notable for providing greater clarity on conduct that may insulate a SEP owner from abuse claims under competition law and, conversely, conduct that may increase exposure to such claims. In this respect, the EU stands in sharp contrast to the U.S., where, in January 2017, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice declined to adopt as part of their guidelines any views on anticompetitive behavior in the specific context of SEP licensing and enforcement. In this paper, we compare the U.S. and EU approaches to SEPs in view of recent trends and analyze the implications for rights holders and implementers alike.