Paper on Injunctions for FRAND-pledged SEPs and Article 102 TFEU
The “smartphone war” has reached the Court of Justice in Luxemburg (and before it the Commission).
With it a whole host of funny acronyms have made a foray in EU competition law = FRAND, SEPs, NPEs, etc.
But more importantly, the smartphone war raises many interesting questions on the appropriate legal standard under Article 102 TFEU.
I just posted a paper on ssrn.com about it:
This paper discusses the legal test under which owners of Standard Essential Patents (SEPs) who have pledged to grant licences to those SEPs on Fair Reasonable and Non-Discriminatory (FRAND) terms can be held guilty of an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) by seeking, or threatening to seek, injunctions against unlicensed implementers of their technology.
To that end, we use the theoretical framework described in a previous paper on rule-making in EU competition law (Petit, 2012). First, we sift through the various tests of abuse potentially applicable in positive EU competition law (I). Second, we show that an objective criterion should command the selection of a test of abuse, and suggests using the notion of ‘consistency’ (II). Third, we rank the applicable tests of abuse on grounds of consistency (III). Fourth, our paper generalizes those results to propose a framework for the assessment of new forms of conduct under Article 102 TFEU (IV).
Link here and comments welcome.