LEGAL PRACTICE: EUROPEAN UNION - UNITED STATES OF AMERICA - INTELLECTUAL PROPERTY - STANDARD ESSENTIAL PATENTS - LICENCES - FRAND

The availability of injunctive relief under EU and US law for FRAND-encumbered patents

Although seeking an injunction might be a legitimate tool, threatening a willing licensee with an injunction to extract excessive royalties can be abusive under competition law. In these cases, patentees abuse their market power by using injunctive remedies to avoid their FRAND commitment. Even where an injunction might not be anti-competitive, proportionality considerations might still make the injunction inappropriate. Therefore, it is important for courts in Europe to consider the principles of proportionality and equity, and as underlined by the recent Communication from the European Commission, the impact injunctions can have on businesses, consumers and on the public interest. In the coming digital economy, it will become even more important that courts consider the relative relevance of the disputed technology for the application in question and the potential spillover effects of an injunction on third parties before granting injunctive relief.

I. Introduction 1. Standards such as Bluetooth, Wi-Fi, or the fourth generation of mobile network communication (LTE) are key to follow-on innovation and ultimately economic growth and consumer welfare. They allow for interoperability between products and services offered by different companies in our modern economies. The mobile phone is an emblematic example of a great technological advance that was achieved through a successful baseline standardisation framework, which was then adapted, improved and combined with additional technologies to create an innovative and integrated downstream product. 2. A new technological revolution is now at stake. The everyday products of tomorrow will be smart devices working on the 5G mobile network, from connected cars to smart meters. For the

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.

 

PDF Version

Author

  • FTI Consulting (Brussels)

Quotation

Lara Rachidi, The availability of injunctive relief under EU and US law for FRAND-encumbered patents, September 2018, Concurrences Review N° 3-2018, Art. N° 87166, pp. 205-210

Visites 820

All reviews