ASCOLA Competition Law series
Edited by Josef Drexl, Warren S. Grimes, Clifford A. Jones, Rudolph J.R. Peritz and Edward T. Swaine
Chapter 14: Industrial Standards and Technology Pools: A Regulatory Challenge for EU Competition Law
Steven Anderman 1 INTRODUCTION Producing industrial standard products through patent and technology pools has on occasion dramatically awakened competition concerns on both sides of the Atlantic in recent years. The most obvious examples in the EU are the recent but now closed cases of Rambus1 and Qualcomm2 and the interchange between the European Commission and ETSI in relation to IPCom’s role in the UMTS pool after it accepted Bosch’s commitment to a FRAND license of essential patents.3 These cases all raised specific questions about the role of obligations within patent or technology pools. However, away from the more dramatic incidents that have occasioned investigations by the Commission, the development of technology pools as an autonomous process of collaboration amongst competitors producing considerable innovative benefit with occasional risks of anticompetitive harm raises demanding questions concerning how the innovative and therefore procompetitive benefits of such collaborations should be 1 The Commission adopted a ‘commitments’ decision in respect of Rambus Inc. which, inter alia, put a cap on royalties it could charge the JEDEC SSO for certain patents for ‘Dynamic Random Access Memory Chips’ (DRAMS). See ‘Antitrust: Commission accepts commitments from Rambus lowering memory chip royalty rates’, Press Release IP/09/1987, 9 December 2009), http://europa. eu/rapid/pressReleasesAction.do?reference=IP/09/1897 (accessed December 2010). 2 Commission, ‘Antitrust: Commission closes formal proceedings against Qualcomm’, Press Release MEMO/09/516, 24 November 2009, http://europa.eu/ rapid/pressReleasesAction.do?reference=MEMO/09/516 (accessed December 2010). 3 See Commission, ‘Antitrust: Commission welcomes IPCom’s public FRAND declaration’, Press Release MEMO/09/549, 10 December 2009, http://europa.eu/ rapid/pressReleasesAction.do...
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