The European Commission’s Director-General for Competition, Alexander Italianer, made a speech on 21 April 2015 entitled “Shaken, not stirred. Competition Law Enforcement and Standard Essential Patents”. The speech provides a good summary of the current interface between standard essential patents and competition law.
In particular, Italianer mentions the Motorola and Samsung cases and in his view, how the cases have taught us two lessons:
- That it is generally legitimate to seek an injunction if someone is infringing your patent.
- But, seeking an injunction can be abusive if the holder has given a commitment to license on FRAND terms and the licensee has been willing to enter into a license under such terms.
However, the speech, like the current case law, does not help license holders or putative licensees in defining what constitutes a FRAND offer. This is the crucial question upon which courts and regulators have chosen not to provide detailed guidance. Instead courts have had to grapple with the concept on a case by case basis.
The speech also specifically devotes a section to the activities of patent trolls. The Commission is monitoring their activities but believes patent trolls are not likely to affect the European market in the same way as the US. The Commission believes this is due to the loser pays principle in European courts and the smaller amount of damages offered in successful cases.
The speech can be found by following this link.