Re-Constructing Intellectual Property Law in a Knowledge Society
Edited by Thomas Riis
Chapter 8: ‘The rise of standardisation and the limits of self-governance’: unilateral conduct under international standards from an EU competition law perspective
Huawei is the latest EU case in the ongoing ‘patent war’ in the ITC (internet and telecom) industry. A patent war played out in courtrooms all over the world, yet fundamentally dealing with the same or similar issues. The cases gravitate around whether patents covering a technical detail, which is essential to a technology standard of infrastructure type, may be used to exclude competitors from an industry as a whole. For example, the current wireless technology used for mobile phone communication is a technical standard, the 4G technology/standard, which is covered by several patents, held by many firms. Can each of those firms refuse entering into licence agreements covering often narrow, yet necessary technology pieces of the over-arching infrastructure technology making up our telecom network standard? Can they thereby, by refusing to enter licences, exclude firms from, for example, the smart phone market as a whole, without infringing competition law? The Huawei case deals with these hotly debated questions of access to international standards and standard essential patents on fair, reasonable and non-discriminatory (FRAND) terms.
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