« Back to all events

Third FCP Annual Conference Competition law and Standard Essential Patents; Testing the Limits of Extra-Territorial Enforcement

Dates:
  • Fri 12 Oct 2018 09.00 - 19.00
  Add to Calendar 2018-10-12 9:00 2018-10-12 19:00 Europe/Paris Third FCP Annual Conference Competition law and Standard Essential Patents; Testing the Limits of Extra-Territorial Enforcement

The enforcement of competition law vis a vis SEPs has been a hot topic in NCAs’ agenda during the past years. Although there is general consensus on the types of anti-competitive conducts linked to SEPs, a number of questions remain open in relation to the enforcement of competition law. The Conference will focus in particular on three inter-related issues.

The first question is about under what conditions the royalty rate requested by the SEP owner to license the patent can indeed be considered “fair” and “reasonable” and negotiated with potential licensees in accordance with “non-discriminatory terms”. In Europe, a number of German courts have recently faced this question in applying to concrete cases the negotiation steps identified by the CJEU in Huawei. Similarly, in its recent ruling in Unwired Planet, the High Court of England and Wales provided important guidelines on the application of the FRAND criteria to a concrete case.

A second important question discussed in the context of the second panel of the FCP Annual Conference concerns the limits of extra-territorial enforcement of competition law vis a vis abuses of SEPs. The latter is an issue of growing relevance in view of the global dimension of SEPs. For instance, the corrective measures recently imposed by Korea Free Trade Commission (KFTC) on Qualcomm have a global scope of application. The question is whether and to what extent NCAs and national courts can impose competition law remedies that go beyond the geographic boundaries of their jurisdiction and how effectively they can monitor their application.



The last issue to be discussed in the context of the final conference round-table concerns the role of Standard Setting Organizations (SSOs) in preventing competition law infringements by SEP owners. In particular, the Communication published by the EU Commission on SEPs in November 2017 calls for SSOs to have a more active role in this area, in order to avoid judicial disputes between the parties. In particular, every SSO should establish an updated database including a detailed list of SEPs applicable to each industry standard. Secondly, the SEP declaration should be sufficiently detailed to clarify the exact scope of application of the patent vis-à-vis the standard. Finally, SEPs should be subject to reliable scrutiny of their essentiality for a standard. The Communication is a soft law instrument; the question is whether any further legislative action will follow the Communication, and secondly whether SSOs will comply with the recommendations included in the Communication.

Refectory, Badia Fiesolana DD/MM/YYYY
  Refectory, Badia Fiesolana

The enforcement of competition law vis a vis SEPs has been a hot topic in NCAs’ agenda during the past years. Although there is general consensus on the types of anti-competitive conducts linked to SEPs, a number of questions remain open in relation to the enforcement of competition law. The Conference will focus in particular on three inter-related issues.

The first question is about under what conditions the royalty rate requested by the SEP owner to license the patent can indeed be considered “fair” and “reasonable” and negotiated with potential licensees in accordance with “non-discriminatory terms”. In Europe, a number of German courts have recently faced this question in applying to concrete cases the negotiation steps identified by the CJEU in Huawei. Similarly, in its recent ruling in Unwired Planet, the High Court of England and Wales provided important guidelines on the application of the FRAND criteria to a concrete case.

A second important question discussed in the context of the second panel of the FCP Annual Conference concerns the limits of extra-territorial enforcement of competition law vis a vis abuses of SEPs. The latter is an issue of growing relevance in view of the global dimension of SEPs. For instance, the corrective measures recently imposed by Korea Free Trade Commission (KFTC) on Qualcomm have a global scope of application. The question is whether and to what extent NCAs and national courts can impose competition law remedies that go beyond the geographic boundaries of their jurisdiction and how effectively they can monitor their application.



The last issue to be discussed in the context of the final conference round-table concerns the role of Standard Setting Organizations (SSOs) in preventing competition law infringements by SEP owners. In particular, the Communication published by the EU Commission on SEPs in November 2017 calls for SSOs to have a more active role in this area, in order to avoid judicial disputes between the parties. In particular, every SSO should establish an updated database including a detailed list of SEPs applicable to each industry standard. Secondly, the SEP declaration should be sufficiently detailed to clarify the exact scope of application of the patent vis-à-vis the standard. Finally, SEPs should be subject to reliable scrutiny of their essentiality for a standard. The Communication is a soft law instrument; the question is whether any further legislative action will follow the Communication, and secondly whether SSOs will comply with the recommendations included in the Communication.


Location:
Refectory, Badia Fiesolana

Affiliation:
Robert Schuman Centre for Advanced Studies

Type:
Conference

Links:
web page conference
 
 

Similar events

 

Page last updated on 18 August 2017