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Standard essential patents – a comparison of approaches between East and West

Yo Sop Choi and Andreas Heinemann

Keywords: SEP; SSO; FRAND; competition law; new economy; IP; comparative law

The rapid development of the ‘New Economy’ on a global scale has brought new issues of competition law, one of them concerning the licensing of standard essential patents (SEPs). Standardization allows interoperability and compatibility and thus enhances not only static but also dynamic efficiency. However, the procedures in standard setting organizations (SSOs) may not be used to unduly restrict competition. In Asia, for example, most competition regimes have highlighted their focus on fair and free competition, making clear that the field of SEP is no exception. Recently, the competition authorities in Korea and China have concluded that a breach of ‘fair, reasonable and non-discriminatory (FRAND)’ commitments may constitute violations of their competition rules, apparently taking inspiration from the case law in the EU. Therefore, it seems overdue to look at recent developments in competition law and policies on SEP and FRAND worldwide and to enquire into the divergence and convergence of competition law in selected jurisdictions. Despite considerable differences, a common feature of all competition regimes discussed in this article is that their goal is to keep markets in the information and communication technology sector as open as possible, including – and especially – with respect to standard-setting procedures.

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