'The Rise of Standardization and the Limits of Self-Governance' - Unilateral Conduct Under International Standards from EU Competition Law Perspective

Abstract

The “patent war” between the largest software, computer and telecom firms is still raging in courtrooms all over the world. The value at stake in these cases is difficult to calculate, but range in the billions, and on a principle level they deal with the fundamental issues of property, ownership and access to the global virtual infrastructures of the future. This paper provides an analysis of part of the “patent war” and more specific the question of access to international standards and the essential patents under these global standards on fair or fair reasonable and non-discriminatory (FRAND) terms. Without access to these patents on fair or FRAND terms firms cannot compete, and the contentious issue is not whether refusal to license these patents may amount to an antitrust violation, but on what terms such access should be granted. How should FRAND be interpreted? The aim for this text is to analyse this question in light of the recent case law development regarding what is an abuse in reference to the terms for accessing standard essential patents (SEPs).

Keywords: standards, abuse of dominance, injunctions, competition law, FRAND, antitrust, SEP, standard essential patents, antitrust