Keywords
abuse of dominant position, FRAND commitments, seeking an injunction, standard essential patents, willing licensee
Abstract
Competition law sets limits on the exercise of intellectual property rights by dominant companies, namely in cases involving standard essential patents (SEPs). This article will examine the framework for SEP owners’ right to seek an injunction, discussing competitive problems that such situations may cause as well as the solutions adopted by the European Institutions,comparing them with the US and Japanese approach, and finally reflecting upon the opportunity for a new test for a new type of abuse. Although the three legal orders – US, EU and Japan – apply different laws establishing a general presumption against injunctions in SEPs encumbered with FRAND commitments, their goal is the same: to protect the interest of the SEP holder to obtain a remuneration without an abusive recourse to injunctions. I will argue that, in the EU, the Huawei case created a new test for a new type of abuse, improving the comprehensibility and certainty for the companies involved in standardization across Europe and allowing the harmonization of national judicial solutions regarding the seeking of injunctions in the SEPs context. In spite of some uncertainties, the new test clarifies the role that competition rules should play in cases of abuses by SEPs owners.
Recommended Citation
Pais, S. (2017). The Huawei Case and Its Aftermath: a New Test for a New Type of Abuse. Yearbook of Antitrust and Regulatory Studies, 10(16), 11-32. https://doi.org/10.7172/1689-9024.YARS.2017.10.16.1
First Page
11
Last Page
32
Page Count
21
DOI
10.7172/1689-9024.YARS.2017.10.16.1
Publisher
University of Warsaw
Publication Date
2017-12-31
