Edited by Josef Drexl and Anselm Kamperman Sanders
Chapter 9: Standard-essential patents: limiting exclusivity for the sake of innovation
The contribution describes the advantages of standard setting, but also the risks it involves, including holdup and holdout. After delineating the respective scopes of application of Art. 101 TFEU and Art. 102 TFEU in SEP/FRAND cases, the contribution discusses whether and when SEP ownership conveys a dominant market position. As to abuse, it proposes an overarching test that looks at whether the use of an SEP undermines the beneficial functions of standardization, namely: (1) technology selection; (2) access to technology and standard; and (3) the passing on of standard generated benefits to the public. This test may be helpful in tackling the three main types of SEP/FRAND cases discernible at present, viz. the ‘ambush cases’, the ‘portfolio transfer cases’ and the ‘FRAND dispute cases’. After briefly characterizing these case types, as well as the main forms of sanctions for SEP-based abuse of dominance, the contribution discusses the CJEU’s decision in Huawei/ZTE and some key questions resulting from it.
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