ASCOLA Competition Law series
Edited by Josef Drexl, Warren S. Grimes, Clifford A. Jones, Rudolph J.R. Peritz and Edward T. Swaine
Chapter 10: Patent Ambush Strategies and Article 102 TFEU
Andreas Fuchs 1 INTRODUCTION In recent years a topic at the interface of antitrust law and IP law has attracted the attention of antitrust authorities on both sides of the Atlantic: the scenario commonly referred to as ‘patent ambush’. The strategy underlying this phenomenon, which has become known in connection with the activities of private standard-setting organizations (SSOs), may be characterized by two steps. The first is taken during an ongoing standard-setting procedure conducted by an SSO or a special committee of it which is about to decide on the possible adoption of a technical or quality standard concerning products or processes in an industry.1 A firm, usually a member of the relevant SSO, participates in the process of working out the features of the standard, but does not play by the rules of the SSO that provide for an obligation to disclose any patents or pending patent applications that may be relevant for the potential standard. Rather, it deliberately decides not to disclose its (pending) IP rights in order not to reduce the prospects of its technology becoming part of the standard, and regularly works actively in this direction within the SSO.2 Once the standard has been adopted and The term ‘standard’ is used to describe a set of technical specifications that provides or is intended to provide a common design for a product or process. For a more detailed description and definition see, e.g., H Hovenkamp, MD Janis and MA Lemley, IP and Antitrust (2001) § 35.1a; Lemley, ‘Intellectual...
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