Catálogo de publicaciones - libros

This chapter focuses on the interface between Intellectual Property Rights (IPR) and competition law. Exercising rights by the IPR holder in certain circumstances may attract the provisions of competition law especially when it has an adverse effect on consumer welfare or amounts to abuse of dominant position. IPR holders may also seek to protect themselves against unfair competition by exercising their rights and statutory remedies. This chapter provides a general overview of the interface between IPR and competition law with specific reference to sectors like the pharmaceuticals, information technology, luxury brands by providing an analysis of the potentially problematic agreements and practices from the point of view of the competition rules.

The interaction between competition law and intellectual property law continues to raise new questions, and gives rise to several interesting topics to debate. The European Commission’s intention ought to be twofold. On the one hand to free resources for the proactive appraisal of new policy areas, and on the other hand to ensure the uniform application of EU Competition Law through procedural guidance and economic, effect-based substantive rules. European Commission Guidelines note and explain the reasons for which market participants and competition watchdogs have accepted standard-setting because of its beneficial effects. Intellectual property law and competition law rules share the same objectives of promoting innovation and enhancing consumer welfare. Furthermore, Intellectual Property Rights (IPR) promotes dynamic competition by encouraging undertakings to invest in developing either new and/or improved products and processes. This is the reason why IPR are considered to be in general pro-competitive. Due to standardization agreements, efficiency gains may be achieved; market integration can be facilitated, transactions costs can be reduced, the necessary time for innovative products offered to end users can be minimized, and the interoperability between network and products can be reduced. For these reasons the question of market power can only be assessed on a case by case basis. Even if the establishment of a standard can create or increase the market power of IPR holders possessing IPR essential to the standard, there is no presumption that holding or exercising IPR essential to a standard equates to the possession or exercise of market power. It is estimated that this concept explains the ‘careful’ approach of the Commission in the Motorola and Samsung cases. The success story of the judgment followed, establishing the reasonable demand of balancing the bargaining powers between owners of so-called “SEP owners” and makers of smart phones and other tele-communications devices relying upon these patents (“makers”). However, in the spring of 2017, the Commission indicated it might publish a formal policy document in order to clarify the rules on patent ownership and licensing. It is hoped that any guidance by the Commission will build at least on the judgment.

This chapter will explore the motivations and strategies of certain stakeholders to devalue FRAND-assured essential patents. It will also address the challenges that the ICT industry is currently facing in the background of past scepticisms from antitrust agencies and courts. The chapter will recommend policy makers to avoid tilting the fragile balance between technology providers and technology implementers which is achieved through FRAND licensing. An imbalance of interests could, otherwise, potentially affect the innovation cycle, reduce investments in R&D, and favor proprietary solutions as opposed to interoperable, standardized options.

There is a large body of research on fair, reasonable and non-discriminatory (FRAND) focused on the licensing of Standard Essential Patents (SEPs) after a standard has been released to the public and implemented into products, but surprisingly little attention has been given to important role FRAND plays in the development of standards themselves. This chapter provides an overview of the European Commission’s (EC) involvement in the development of the European Telecommunications Standard Institute’s (ETSI) IPR Policy which illuminates on the vital role that FRAND plays in the process of standards development.

The mobile evolution has transformed into a digital revolution. People around the world, along with hundreds of objects surrounding them, will be connected to networks as well as to one another, through significantly faster, more robust and secure wireless communications. A range of industrial sectors will ride on this transformative digital wave, from automotive, healthcare and energy, to urban infrastructure, agriculture and entertainment. To facilitate this inevitable change, reliable networks running on technology standards enabling them, will be needed. This brings to center stage the critical role of the patent system that incentivizes technology innovation, and the antitrust laws that ensure that market competition facilitating innovation is safeguarded. It is no secret that SSOs have played a key role in changing the landscape of the information and technology industry; their membership comprising of Standard Essential Patent (SEP) holders on one hand and implementers on the other. While the SEP holders are involved in research & development (R&D) and look to maximize their earnings from licensing out their SEPs, the implementers look to seek licenses from SEP holders on terms that are Fair, Reasonable and Non-Discriminatory (FRAND), in order to use the patented technology in the manufacturing of standard-compliant end-use products. However, at least in theory, an SEP holder can always engage in opportunistic behaviour in charging higher royalties from the implementer for licensing out the technology once the technology is locked into a standard, than the real worth of the technology at the time of creation of the standard by the SSO. It was to address these concerns that the Institute of Electrical and Electronics Engineers introduced a few changes to their IPR policy in early 2015.

Judgements handed down by the UK High Court, Chancery Division, Patents Court in the case in April and June 2017 provided significant new precedents in the field of fair, reasonable, and non-discriminatory (FRAND) licensing of standards-essential patents (SEPs). Mr. Justice Birss applied the CJEU’s broad procedural guideposts in its 2015 decision for determining whether the conduct of a negotiation for patent licenses results, in fact, in a FRAND license. However, the decision was incomplete in some key respects. Now the UK High Court has built on the CJEU guideposts and announced some new standards:FRAND license is by definition a global license; how, specifically, should the royalty rates should be calculated; whether a ‘FRAND’ royalty rate is a finite number or a range of possible rates; clarification of the parties’ obligations with respect to the negotiation process; and what the contents of a FRAND license agreement should be. In addition, the UK High Court has added further clarification as to how FRAND law should be analyzed in the context of prevailing competition law. As technology relies more heavily on standards-based implementations, the need for transparent, predicable and reasonable licensing becomes ever more critical. In cellular telecommunications the efficient roll-out of 5G technology will be enhanced by licensing rules that exist today but did not when earlier technologies hit the markets. reflects major progress in instructions to licensors and licensees, but some points remain open. Future courts will have to provide further clarification in order to bring about a more orderly licensing environment.

The European Commission in their recent communication paper (COM (2017) 712 final)(EC paper) titled ‘Setting out the EU approach to Standard Essential Patents’ considered the obligations that are cast upon parties during pre-licensing negotiations of SEPs on FRAND terms. The EC paper has derived such obligations from the behavioral criteria as determined by the CJEU in the judgement. While provided the general framework, it further evolved through various court decisions in Germany and in the case. This chapter reflects on the framework developed in the judgment and shows how this framework has evolved in the post cases in Germany and UK. The post cases have tried to adhere to the overall framework provided under , although there are number of inconsistencies as to specific obligations. From the perceived inconsistences, this chapter concludes on a note that the overall conduct of the parties would play a major role before granting injunctive relief to SEP holders.

This chapter examines how the Chinese Supreme Court thinks that an SEP holder can only claim the royalty rate that is apparently below the normal licensing rate. Cao argues that the Guangdong court in seems to have adopted a policy of lowest possible royalty rate. He examines how policies pertaining to different royalty rates have been adopted by different courts in China and explores possible factors that can determine the rate.

The purpose of this chapter is to analyze the 1st and 2nd Qualcomm cases of the Korea Fair Trade Commission (KFTC) from a legal perspective. This chapter examines and analyzes some of the competition law issues in the two cases. The review deals with the issue of defining relevant markets, the criteria for determining whether there is a violation or evasion of fair, reasonable and non-discriminatory (FRAND) commitment, the competition law assessment of FRAND commitment infringements, and the theories and establishment of competitive harm. 

This chapter argues regulations governing standard essential patents (SEPs) in the setting of implementer-oriented countries. In those countries, where few firms have volumes of SEPs, and a majority of firms received licenses, policies inevitably tend to seek weaker regime of SEPs. However, recent public policy struggles in India and Japan illustrate the difficulty of their fair and effective regulation. The authors investigated their recent experiences on SEP regulations to provide implications on public policies concerning the SEP issues. India, showing the constantly evolving SEP jurisprudence, published two consultation papers from the Department of Industrial Policy and Promotion and Telecom Regulatory Authority of India in 2016 and 2017. These documents stated the need for an appropriate measure to decide the injunction and reasonable royalty rate by referring several case laws and in-depth analysis of cases. They also proposed an introduction of an alternative dispute resolution (ADR) system. But no specific policy action has taken. By contrast, Japan, in which very few cases are disputed in their courts, attempted to introduce an ADR in 2017. Japanese government emphasized the complexity of SEP issues in the future industrial context and the rationality of the system for the fair competition between global SEP holders and small and medium entities. But they came under fierce criticism as the system potentially works as an implementer of compulsory licenses. By introducing the new ADR, Japanese government published a detailed report on major issues in this field. These experiences imply that even in implementer-oriented countries they should develop capacities of court judges and national competition agencies to provide fair and reasonable decisions and try to resolve information asymmetry as Japanese governments did. This Chapter attempts to explain the details of amendments to the IEEE IPR policy and analyse their impact on the incentives for innovation and dissemination of innovation in essential technologies that are enabled by a well-functioning SSO.