Volume: 3 Issue: 1

Queen Mary Journal of Intellectual Property

Standardization agreements, intellectual property rights and anti-competitive concerns

Enrico Bonadio * *

Keywords: patents, standardization agreements, FRAND, competition, restrictive agreements, abuse of dominant position


The relationship between standardization processes, intellectual property rights and competition rules has increasingly become of interest in the recent years. Recent investigations of the European Commission confirm that standardization processes and in particular ownership of IPRs that cover standardized technology might in certain circumstances infringe competition rules.

The article first explores the meaning and different forms of standardization. It then analyses selected parts of the Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, in particular those parts that cover standardization agreements. The Guidelines have been adopted by the Commission in December 2010 with a view to addressing the anti-competitive concerns stemming from inter alia standardization agreements (eg they encourage IPRs holders to disclose their exclusive rights before the adoption of the standard, as well as to give an irrevocable commitment to offer to license the IPR to all parties interested on a fair, reasonable and non-discriminatory terms: the so-called FRAND commitment).

The author will then present and comment on different points of view on whether the ownership of IPRs which cover standardized technologies really create market dominance capable of triggering anti-competitive behaviours. Finally, a set of additional solutions proposed by various legal scholars will be highlighted and commented on.

Author Notes

Comments are welcome and should be sent to enrico.bonadio.1@city.ac.uk. An earlier version of this paper was presented at the 2nd Lexis Nexis Annual Legal and Policy Conference ‘Standards and Patents in the ICT Sector’, held in London (UK) on 12 June 2012. The author would like to thank the anonymous reviewers for their valuable comments and suggestions.

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