Injunctive Relief in Frand Disputes in the EU Intellectual Property and Competition Law at the Remedies Stage

2017 ◽  
Author(s):  
Pierre Larouche ◽  
Nicolo Zingales
Keyword(s):  
Intellectual Property ◽  
Competition Law ◽  
Injunctive Relief ◽  
The Eu

scholarly journals The Huawei Case and Its Aftermath: a New Test for a New Type of Abuse

2017 ◽  
Vol 10 (16) ◽  
pp. 11-31
Author(s):  
Sofia Oliveira Pais
Keyword(s):  
Intellectual Property ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
European Institutions ◽  
Standard Essential Patents ◽  
The Us ◽  
Competition Rules ◽  
New Type ◽  
Type Of Abuse ◽  
The Eu

Competition law sets limits on the exercise of intellectual property rights by dominant companies, namely in cases involving standard essential patents (SEPs). This article will examine the framework for SEP owners’ right to seek an injunction, discussing competitive problems that such situations may cause as well as the solutions adopted by the European Institutions, comparing them with the US and Japanese approach, and finally reflecting upon the opportunity for a new test for a new type of abuse. Although the three legal orders – US, EU and Japan – apply different laws establishing a general presumption against injunctions in SEPs encumbered with FRAND commitments, their goal is the same: to protect the interest of the SEP holder to obtain a remuneration without an abusive recourse to injunctions. I will argue that, in the EU, the Huawei case created a new test for a new type of abuse, improving the comprehensibility and certainty for the companies involved in standardization across Europe and allowing the harmonization of national judicial solutions regarding the seeking of injunctions in the SEPs context. In spite of some uncertainties, the new test clarifies the role that competition rules should play in cases of abuses by SEPs owners

scholarly journals The peculiarities of observance of the EU competition law in the conditions of digital environment and the protection of intellectual property rights

2021 ◽  
pp. 29-38
Author(s):  
Irina Viktorovna Shugurova
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
European Commission ◽  
Intellectual Property Rights ◽  
Competition Law ◽  
Digital Environment ◽  
The European Union ◽  
Eu Competition Law ◽  
Comprehensive Examination ◽  
The Eu

The subject of this research is the analysis of interaction between the EU competition law and the intellectual property legislation in the conditions of the development of digital environment. The goal lies in determination of the peculiarities of observance of the EU competition law in the process of implementation and protection of the intellectual property rights. The author dwells on correlation between the principle of free movement of goods and services within the single market and the principle of territorial scope of exclusive rights. Analysis is conducted on the key provisions of the European Commission Regulation, which exclude certain agreements, namely on the transfer of technologies, from the Article 101(3) of the Treaty on the Functioning of the European Union. The main conclusion lies in the theoretical assumption that the EU legal policy in the sphere of competition in the conditions of the development of the Digital Single Market is aimed simultaneously at protection of competition and protection of the potential of innovations. Reaching the balance between the interests of all parties to the market relations would promote innovations and keep the market open. The scientific novelty of this research consists in comprehensive examination of the main approaches of the European Commission and the Court of Justice of the European Union towards settling disputes in the area of licensing, as well possible abuse by the copyright holders of their dominant position in the conditions of development of the digital environment. The author’s main contribution lies in comprehensive examination of the provisions of the Treaty on the Functioning of the European Union on Protection of Competition from the perspective of implementation and protection of exclusive rights.

scholarly journals Standard-Essential Patents and the Japanese Competition Law in Comparison with China, the U.S., and the EU

2017 ◽  
Vol 62 (3) ◽  
pp. 483-493
Author(s):  
Toshiaki Takigawa
Keyword(s):  
Intellectual Property ◽  
Competition Law ◽  
High Court ◽  
Standard Essential Patents ◽  
Essential Patent ◽  
Very High ◽  
Chinese Court ◽  
Standard Essential Patent ◽  
The U.S ◽  
The Eu

Despite having committed to FRAND (fair, reasonable and nondiscriminatory) terms, not a few standard essential patent (SEP) owners have engaged in holdup (such as suing for injunction, or levying very high royalty), which has triggered antitrust/competition actions in the U.S., the EU, China, Japan, and Korea. This article focuses on the Japanese situation, highlighting its difference with the Chinese one. The Japanese competition agency (JFTC) as well as the Japanese Intellectual Property (IP) High Court have closely studied the jurisprudence in the U.S. and the EU, coming up with solutions in line with those adopted by the U.S. and EU courts and agencies. By contrast, Chinese agencies and courts have devised unique methods for tackling SEP/FRAND issues. First, a Chinese antimonopoly agency has utilized the exploitative-abuse provision of the Chinese competition law for ordering a SEP owner to reduce its royalties to Chinese licensees, regardless of the SEP owners’ FRAND commitment. Second, a Chinese court utilized “nondiscriminatory” portion of FRAND commitment, for mandating virtually the same royalty to be levied on Chinese licensees as that levied on Apple. These methods either leave too much latitude to the agencies or lack a convincing rationale.

scholarly journals A Study of Competition Law and Intellectual Property in the EU

2011 ◽  
Vol 6 (2) ◽  
pp. 109-145 ◽  
Author(s):  
Yo Sop Choi
Keyword(s):  
Intellectual Property ◽  
Competition Law ◽  
The Eu

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

2018 ◽  
Vol 5 (2) ◽  
pp. 199 ◽  
Author(s):  
Wojciech Paweł SZYDŁO
Keyword(s):  
Crude Oil ◽  
Competition Law ◽  
Eu Law ◽  
The European Union ◽  
Dominant Position ◽  
Oil Companies ◽  
Effective Competition ◽  
Oil Pipelines ◽  
Transfer Services ◽  
The Eu

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law.  Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law.  Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

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