On 21 December 2012, the EC indicated that its preliminary view is that Samsung has abused a dominant position by seeking injunctions against Apple in various EU countries on the basis of its 3G mobile phone standard-essential patents (SEPs). While recourse to injunctions is a perfectly legal remedy for patent infringements, such conduct may, in the EC’s view, be considered abusive where SEPs are concerned and the potential licensee is willing to negotiate a licence on fair, reasonable and non-discriminatory (so-called FRAND) terms.

The EC’s concern is that, since injunctions generally involve a prohibition of the product infringing the patent being sold, recourse to an injunction in this situation (where there is a willing licensee) risks excluding products from the market without justification and may distort licensing negotiations unduly in the SEP-holder’s favour. The EC is careful to point out, however, that it does not question the availability of injunctive relief for SEP holders outside the specific circumstances present in this case (such as where a third party is unwilling to take a licence, an “unwilling licensee”).

This case is highly important in the context of the application of abuse of dominance rules in the EU to licensing conduct and litigation strategy concerning SEPs generally (not just where smartphones are concerned). There is to date no precedent (and limited guidance) and, if a decision is ultimately taken, the case will therefore be the first to establish when injunctions in SEP-related patent litigation are allowed under EU and national competition law. Any company involved in licensing SEPs in any sector in the EU should watch it carefully.