Introduction The application of competition law as it relates to the licensing of intellectual property rights (“IPRs”) remains a topic of heated debate and development. Previous articles in e-Competitions have outlined such developments and trends at EU and Member State level and we aim in this foreword to provide an overview of recent trends and interesting cases over the last few years. (...)
Licensing agreements
Dominance
The UK Competition Authority acts to help the patients access combination therapies used to treat serious medical conditions through removing barriers to availability of vital treatments Free
CMA removes barrier to availability of vital treatments on the NHS*
The CMA acts to help NHS patients access combination therapies used to treat serious medical conditions.
The Competition and Markets Authority (CMA) has today issued a statement clarifying that certain types of engagements (...)
The UK Competition Authority outlines the scope of its market investigation into cloud services
CMA outlines scope of market investigation into cloud services*
The CMA will explore whether technical barriers, fees to transfer data, volume discounts and software licensing practices are hindering competition in cloud services.
The Competition and Markets Authority (CMA) has today (...)
The EU Commission proposes a draft Gigabit Infrastructure Act to fast-track the deployment of very high-capacity fixed and mobile connectivity and replace the Broadband Cost Reduction Directive
In Short
The Situation: The European Commission has presented three initiatives to transform the connectivity sector on 23 February 2023 (the "Connectivity Package").
The State of Play: The European Commission has proposed a draft Gigabit Infrastructure Act ("GIA") proposal that would come (...)
The EU Commission launches consultation on a new framework for standard essential patents
On 14 February 2022, the European Commission (“Commission”) launched a public consultation on an initiative for a new framework for standard essential patents (“SEPs”) called “Intellectual property – new framework for standard essential patents”, in order to receive the views of citizens and (...)
The UK Government launches a call for views on standard essential patents in order to better understand whether the current SEPs framework functions efficiently, supports innovation and strikes the right balance for all entities involved
On 7 December 2021, the UK’s Intellectual Property Office (“IPO”) launched a call for views on Standard Essential Patents (“SEPs”) in order to better understand whether the current SEPs framework: (i) is functioning efficiently; (ii) supports innovation (particularly in light of the UK (...)
The US DoJ quietly walks back prior administrative-era support of standard essential patent holders over standard-setting organizations and patent licensees
The Department of Justice’s Antitrust Division has taken a first step in changing its view of IP rights, particularly where Standard Essential Patents ("SEPs") are at issue. Under the Trump Administration, the Division’s policy swung in favor of SEP innovators over standard-setting (...)
The US FTC issues a report for the 2017 fiscal year on pharmaceutical firms’ patent settlements with generic competitors
FTC Staff Issues FY 2017 Report on Branded Drug Firms’ Patent Settlements with Generic Competitors*
The number of reverse-payment agreements remains low; for the first time since FY 2004, no agreement contains a no-AG commitment.
According to a new FTC staff report, the total number of (...)
The US FTC publishes its annual report on pharmaceutical patent settlements
On December 3, 2020, the Federal Trade Commission (FTC) published its annual report on pharmaceutical patent settlements filed with the FTC under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA)—its fourth annual review since the Supreme Court’s seminal decision (...)
The Chinese State Administration for Market Regulation promulgates the Anti-monopoly Guidelines for intellectual property rights providing a more detailed analytical framework for monopoly agreements and abuse of dominant position
In 2020, SAMR promulgated the Anti-monopoly Guidelines for Intellectual Property Rights, i.e. IP Guidelines, which provide a more detailed analytical framework for monopoly agreements and abuse of dominant market position involving intellectual property: Definition of relevant market: The IP (...)
The EU Commission adopts an action plan for intellectual property to promote recovery and resilience
On November 25, 2020, the EU Commission adopted an action plan for intellectual property to promote recovery and resilience in the EU – its plan for a new IP strategy. The focus is not only on the protection of, but the access to innovation.
Companies from all sectors have realized that in (...)
The EU Court of Justice AG Saugmandsgaard Øe indicates that providing misleading information aimed at undermining the reputation of one drug to the benefit of another drug might constitute a restriction by object (Hoffmann-La Roche)
On 21 September 2017 Advocate General Saugmandsgaard Øe (‘AG’) issued his opinion in F. Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato (AGCM). In his opinion the AG provides guidance to the Court of Justice of the European Union (‘CJEU’) on the various questions raised (...)
The EU Commission publishes a preliminary report on its e-commerce sector inquiry and identifies a number of business practices believed to be restricting competition in online trade for consumer goods and digital content
On 15th September, the European Commission published the preliminary report on its e-commerce sector inquiry. The Commission has identified a number of business practices which it believes may restrict competition in online trade for consumer goods and digital content. It has warned of (...)
The EU Commission issues a Statement of Objections to clothing retailers for implementing anticompetitive cross-border sales restrictions (Pierre Cardin / Ahlers)
Main take-aways Pierre Cardin and its licensee Ahlers receive statement of objections; Commission recognises its limited ability to tackle unilateral territorial supply constraints; Pending investigation of Mondelēz covers both collusive and unilateral (possible) restraints; Forthcoming Valve (...)
The German Competition Authority issues a statement of objections against various practices of a Big Tech company in connection with its automotive services and maps (Google Maps)
Statement of objections issued against various of Google’s practices in connection with Google Automotive Services and Google Maps Platform*
The Bundeskartellamt has today forwarded its preliminary legal assessment of Google’s practices in connection with Google Automotive Services (GAS) to (...)
The Italian Competition Authority imposes interim measures against a Big Tech company in the ongoing investigation concerning an alleged abuse of economic dependence in digital markets (SIAE / Meta)
On 20 April 2023, the Italian Competition Authority (“ICA”) imposed interim measures on Meta and ordered Meta to negotiate in good faith with the Italian Society of Authors and Publishers (“SIAE”), alleging that SIAE was economically dependent on Meta and that Meta, by terminating negotiations (...)
The Italian Competition Authority orders a social media giant to resume negotiations with a copyright-collecting organisation following an investigation over an alleged abuse of economic dependence in the licensing of music rights on social media platforms (SIAE / Meta)
A559- - Antitrust: the ICA orders Meta to resume negotiations with SIAE. Musical works available again on Facebook e Instagram*
The Authority adopts interim measures concerning the alleged abuse of economic dependence by Mark Zuckerberg’s group, which will also have to provide all (...)
The Italian Competition Authority investigates a Big Tech company over an alleged abuse of economic dependence in digital markets (SIAE / Meta)
Relying on the recently enlarged notion of abuse of economic dependence on digital markets, the Italian Competition Authority (ICA) has opened an in-depth investigation against the Meta group in the Meta v SIAE case (See Autorità Garante della Concorrenza e del Mercato (Italian Competition (...)
The Italian Competition Authority commences an investigation over an alleged abuse of economic dependence by a Big Tech firm in the licensing of the use of music rights on its platforms (SIAE / Meta)
A559 - ICA: probe started for abuse of economic dependence by Meta towards SIAE*
According to the Authority, Mark Zuckerberg’s company could have unduly interrupted the negotiations for licensing the use, on its platforms, of musical rights thus abusing of SIAE’s economic dependence. At the (...)
The French Competition Authority dismisses a claim suggesting there was discrimination in the tendering process for the rights to broadcast the matches of the foremost French football league (Amazon / Canal + / beIN Sports)
Partial reawarding of the TV rights for Football Ligue 1 to Amazon: the Autorité de la concurrence rejects the complaints of the Canal + Group and beIN Sports for lack of sufficient evidence*
Background
The reawarding to Amazon of the broadcasting rights for Football Ligue 1 previously (...)
The German Competition Authority initiates proceedings against a Big Tech for possible anti-competitive restrictions on map services (Google Maps)
Proceeding against Google for possible anti-competitive restrictions of map services (Google Maps Platform)*
Bonn, 21 June 2022: The Bundeskartellamt has initiated a proceeding against Google Germany GmbH, Hamburg and Alphabet Inc., Mountain View, USA. The proceeding is to examine possible (...)
The Italian Competition Authority initiates non-compliance proceedings following a warning which required the company to cease an unfair practice in the highway infrastructure sector (Autostrade)
ICA: non-compliance proceedings initiated against Autostrade per l’Italia*
The licence-owner received a fine of €5 million in March but has not yet reduced the cost of tolls on the sections with significant traffic problems.
The Italian Competition Authority has initiated a non-compliance (...)
The Indian Competition Authority opens an investigation into a Big Tech company for abusing its dominance in the market of smart TV operating systems and market for related mobile apps (Google / Xiaomi / TCL)
In its order dated 22nd June 2021, the Competition Commission of India (CCI) directed an investigation against Google after being prima facie convinced of it abusing its dominance in the market of licensable smart TV device operating systems (OS) as well as the market for app store for Android (...)
The French Competition Authority rejects a TV broadcaster’s complaint against the national football league’s awarding of broadcasting rights due to insufficient evidence (Canal Plus / Ligue de Football Professionnel)
Reawarding of the football Ligue 1’s TV rights: The Autorité de la concurrence rejects Canal + Group’s complaint against the LFP, for lack of sufficient evidence* Background
On 29 January 2021, Canal Plus Group ("GCP") referred practices allegedly implemented by the Ligue de Football (...)
The Japanese FTC and the Government propose draft guidelines for business collaboration between large companies and startups for the purpose of promoting open innovation and ensuring fair and free competitive environments
On December 23, 2020, the Japan Fair Trade Commission ("JFTC") and Ministry of Economy, Trade and Industry ("METI") proposed a draft of Guidelines for Business Collaboration with Startups ("Guidelines") for the purpose of promoting open innovation and ensuring fair and free competitive (...)
The Czech Competition Authority rejects an appeal from a collecting society for music authors and confirms the fine for abuse of dominant position (OSA)
The Czech Office for the Protection of Competition ("Office") published a press release (without publishing the full decisions yet) regarding the rejection of the appeal of the collecting society for music authors’ rights OSA - Ochranný svaz autorský pro práva k dílům hudebním, z.s. ("OSA"), (...)
The Regional Court of Düsseldorf questions the EU Court of Justice on SEPs licensing in supply chains (Nokia / Daimler)
In a decision of November 26, 2020 in a patent infringement case of Nokia Technologies Oy against Daimler AG, the Düsseldorf Regional Court (file number 4c O 17/19) referred several questions to the European Court of Justice (ECJ) regarding the licensing of standard essential patents (SEPs) (...)
The Regional Court of Düsseldorf refers questions regarding the licensing of standard essential patents in multi-layered supply chains to the EU Court of Justice (Nokia / Daimler)
On 26 November 2020, the Regional Court of Düsseldorf (“Düsseldorf Court”) decided to request a preliminary ruling from the Court of Justice of the European Union (“ECJ”) in patent infringement proceedings involving Nokia and Daimler. The questions give the ECJ the opportunity to offer (...)
The EU Court of Justice rules on the royalty mechanism of a Belgian collecting society in a situation of de facto monopoly (SABAM)
On 25 November 2020, the European Court of Justice (ECJ) handed down its preliminary ruling in response to the request by the Ondernemingsrechtbank Antwerp as to the interpretation of Article 102 TFEU. The disagreement between Weareone.World and Wecandance on one side, and SABAM, a Belgian (...)
The Belgian Competition Authority imposes interim measures requested by a football club following an appeal judgment (Virton / RBFA)
On 19 November 2020, the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence - the BCA) imposed interim measures on the Royal Belgian Football Association (the RBFA) at (...)
The Indian Competition Authority opens investigation into Big Tech company’s alleged exclusivity in digital payment services (Google)
On November 09, 2020 the Competition Commission of India (hereinafter CCI) directed the Director General (hereinafter ‘DG’) to investigate digital payment services offered by Google, under section 26(1) of the Competition Act, 2002 (hereinafter ‘Act’). The allegations levied by the Informant (...)
The Swiss Competition Authority fines a cable operator for abusing broadcasting rights (UPC)
COMCO: UPC abused ice hockey broadcasting rights*
The Competition Commission (COMCO) fines UPC by around CHF 30 million. In 2016, UPC acquired broadcasting rights for games of the Swiss Ice Hockey Championship. It refused to supply Swisscom with broadcasts of live ice hockey for years. This (...)
The German Federal Court of Justice rules on the burden of proof for showing exhaustion of trademark right (Amazon / Coty)
On 15 October 2020, the German Federal Court of Justice (“FCJ”) issued a judgment on the burden of proof for showing the exhaustion of trademark rights in a case pitting Coty against Amazon.
After having made a test purchase from Amazon of two bottles of a perfume bearing the “JOOP!” (...)
The US Court of Appeals for the Federal Circuit reverses a judgment that upheld “skinny labels” and allowed a generic medicine to launch on uses not covered by a patent (GlaxoSmithKline / Teva)
On October 2, 2020, the U.S. Court of Appeals for the Federal Circuit vacated a district court’s judgment in favor of defendant Teva in a case involving “skinny labels.” GlaxoSmithKline LLC v. Teva Pharm. USA, Inc., 976 F.3d 1347 (Fed. Cir. 2020). When a drug can be used to treat multiple (...)
The US FTC requests rehearing en banc by the US Court of Appeals for the Ninth Circuit in a case involving a global semiconductor company’s standard-essential patent licensing practices (Qualcomm)
FTC Requests Rehearing En Banc of Qualcomm Appeals Panel Decision*
The Federal Trade Commission today filed a petition with the U.S. Court of Appeals for the Ninth Circuit requesting rehearing en banc of the August 11, 2020, decision of a panel of that court in the matter of FTC v. Qualcomm (...)
The Regional Court of Munich rules in favour of an electronics manufacturer in a standard essential patent proceeding (Sharp / Daimler)
On 10 September 2020, the Regional Court of Munich (“Munich Court”) ruled in favour of Sharp that Daimler had infringed a standard essential patent (“SEP”) of Sharp.
Sharp is the patent holder of EP 2667676B1 which is standard essential for the Long-Term Evolution (“LTE”) telecommunications (...)
The French Competition Authority imposes a fine worth a total of €444 million on three pharmaceutical companies for collective abuse of dominance practices designed to sustain the sale of an expensive drug (Novartis ; Roche ; Genentech)
The French Competition Authority ("FCA") has issued a rare decision sanctioning three laboratories active in treatment of age-related macular degeneration on the basis of collective abuse of dominance practices designed to sustain the sale of an expensive drug, Lucentis, to the detriment of a (...)
The French Competition Authority fines three laboratories for abusive practices (Novartis ; Roche ; Genentech)
Treatment for AMD: the Autorité fines 3 laboratories for abusive practices*
The Autorité de la concurrence has imposed fines worth a total of €444 million on three pharmaceutical companies, Novartis, Roche and Genentech, for abusive practices designed to sustain the sales of Lucentis for AMD (...)
The French Competition Authority fines 3 laboratories for abusive efforts to segment the market (Novartis ; Roche ; Genentech)
Background
On 9 September 2020, the French Competition Authority (the “FCA”) imposed a fine of € 444 million on Genentech, Novartis and Roche for abusing their collective dominant position on the market for the commercialisation of drugs for the treatment of age-related macular degeneration (...)
The UK Supreme Court rules on a license dispute between a software and a telecommunications company and clarifies the English Courts’ approach to FRAND royalty cases (Unwired Planet / Huawei)
On 26 August 2020, the UK Supreme Court issued a judgment in a licence dispute involving Standard Essential Patents (“SEPs”) pitting Unwired Planet, a US based patent assertion entity, against Huawei, a Chinese telecommunications company that produces smartphones.
Unwired Planet brought an (...)
The US Court of Appeals for the Ninth Circuit overturns a ruling finding that a semiconductor company’s licensing practice abused its dominant position (Qualcomm)
On 11 August 2020, a panel of the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), in a unanimous opinion by Judge Callahan, reversed the U.S. Federal Trade Commission’s (“FTC’s”) win in the district court against Qualcomm Inc. (“Qualcomm”) and upheld Qualcomm’s licensing (...)
The US Court of Appeals for the Ninth Circuit reverses a ruling finding that a semiconductor company abused its dominant position regarding its standard-essential patents (Qualcomm)
On August 11, 2020, a Ninth Circuit panel reversed the District Court for the Northern District of California’s judgment in FTC v. Qualcomm, Inc. The panel held that Qualcomm’s conduct—(a) refusing to license its standards essential patents (SEPs) to rival chipset manufacturers; (b) refusing (...)
The US Court of Appeals for the Ninth Circuit rules that there is no antitrust violation in a multinational semiconductor company’s licensing of its standard-essential patents (Qualcomm)
Ninth Circuit Reverses FTC Win in FTC v. Qualcomm, Finding No Antitrust Violations from Qualcomm’s Licensing of its Standard-Essential Patents*
In a reversal that came as no surprise to many observers, on Tuesday, August 11, 2020, a unanimous panel of the U.S. Court of Appeals for the Ninth (...)
The US Court of Appeals for the Ninth Circuit strikes down a sweeping injunction against a semiconductor company and reins in an expansive interpretation of the Sherman Act (Qualcomm)
On August 11, 2020, the U.S. Court of Appeals for the Ninth Circuit decisively reversed the Federal Trade Commission’s (FTC or Commission) controversial district court win challenging Qualcomm’s licensing practices. In rejecting every aspect of the lower court’s decision, the Ninth Circuit (...)
The Beijing Intellectual Property Court rules that a national audio-video copyright association did not abuse its dominant position (KTV / CAVCA)
Antitrust litigations concerning intellectual property rights increased in 2020. Among notable cases, the case of eight KTV v. China Audio Video Copyright Association (“CAVCA”) for its abuse of dominance attracted particular attention.
Background
In this case, the plaintiffs of eight KTV (...)
The German Federal Court of Justice issues a judgment in a case involving SEP licensing negotiations on FRAND terms between two companies active in the mobile telecommunications market (Sisvel / Haier)
On 5 May 2020, the German Federal Court of Justice (Bundesgerichtshof - the “FCJ”) delivered a judgment in a case pitting Sisvel against Haier which deals with the licensing of Standard Essential Patents (“SEP”) on terms that are fair, reasonable and non-discriminatory (“FRAND”). This is the (...)
The German Federal Court of Justice rules on SEP licensing negotiations and FRAND terms in the mobile telecommunications market (Sisvel / Haier)
The German Federal Court of Justice (FCJ) has issued its decision in a landmark case regarding standard essential patents (SEPs) and fair, reasonable and nondiscriminatory (FRAND) licensing of SEPs. The judgment, dated 5 May 2020, was handed down in litigation between the Sisvel patent pool (...)
The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Sisvel / Haier)
In its judgment of 5 May 2020, the Federal Court of Justice (“FCJ”) overturned the appeal ruling of the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”) and found that Haier’s mobile telephones and tablets infringed Sisvel’s standard-essential patent (“SEP”) and that Sisvel had not (...)
The French Competition Authority imposes interim measures on a dominant Big Tech company requiring it to enter into good faith negotiations with publishers and new agencies (Google)
After the record fine of 1.1 billion euros against Apple, the French Competition Authority continues to show a strong leadership in its fight against “Big Tech” — Google, Apple, Facebook, and Amazon, the “GAFAs,” — by imposing interim measures on Google, requiring it to enter into good faith (...)
The French Competition Authority imposes interim measures on a Big Tech giant to negotiate in good faith with press publishers and news agencies the remuneration associated with the use of their content based on transparent, objective, and non-discriminatory criteria (Google)
On 9 April 2020, the FCA imposed interim measures on Google, ordering the big tech giant to negotiate in good faith with press publishers and news agencies the remuneration associated to the use of their content based on transparent, objective and non-discriminatory criteria.
These interim (...)
The Dutch Competition Authority expresses its satisfaction with commitments made by a pharmaceutical company regarding the supply of testing material for a drug test (Roche)
On 3 April 2020, the Dutch competition authority (Autoriteit Consument en Markt or “ACM”) published a press release expressing its satisfaction with commitments made by Roche Diagnostics (“Roche”) regarding the supply of testing materials for the SARS- CoV-2 test.
Roche, which the ACM says (...)
The Indian Competition Authority closes a case of alleged abuse of dominance by a state broadcaster and the national ministry responsible for broadcasting (Next Radio / Prasar Bharti / Ministry of Information and Broadcasting)
The CCI closed a case of alleged abuse of dominance by Indian state broadcaster Prasar Bharti and the Ministry of Information and Broadcasting (Opposite Parties). [1]
Two private broadcasters complained that the Opposite Parties had abused their dominance in the market for the provision of (...)
The Cypriot Competition Authority finds that excessive prices applied by the airport operator on its competitors for licensing parking services amount to an abuse of a dominant position (A. Princess Airport Parking / C & A Stop and Fly / X. Xanthos Airport Parking Services / Hermes Airports)
The Cypriot Commission for the Protection of Competition (CPC) found that excessive prices applied by the airport operator on its competitors for parking services amount to an abuse of a dominant position.
The complainants in this case, A. Princess Airport Parking Ltd, C & A Stop and (...)
The Czech Competition Authority fines the collective rights management organisation for abuse of a dominant position (OSA)
In a first-instance decision, the Office for the Protection of Competition ("Office") imposed a fine amounting to CZK 10,676,000 on the collective rights management organisation, Ochranný svaz autorský pro práva k dílům hudebním ("OSA"), for an abuse of a dominant position. The decision has (...)
The Antwerp Enterprise Court refers request for a preliminary ruling to the EU Court of Justice in excessive pricing case between festival organisers (SABAM)
On 10 May 2019, the Antwerp Enterprise Court (the “Court”) referred a request for a preliminary ruling to the Court of Justice of the European Union (the “ECJ”) in two separate cases between Belgian festival organisers Weareone. World BVBA (the organisers of Tomorrowland) and Wecandance NV (...)
The Egyptian Economic Court fines the president and the secretary general of a sports association for abuse of dominance regarding an exclusive licensing agreement (Confederation of African Football)
Economic Court has Fined Mr. Isaa Hayatou (President of CAF) and Mr. Hicham El Amrani (Secretary General of CAF) 500 Million EGP Each*
Background of the case:
January 3rd 2017, the Egyptian Competition Authority (ECA) requested the Prosecutor’s Office to press criminal charges pursuant (...)
The US Northern District Court of California requires the holder of a standard essential patent for cellular communication to license it to all those willing to pay a fair, reasonable and non-discriminatory rate (Qualcomm)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
FTC Secures Partial Victory Requiring SEP Holder to License to All Comers in Antitrust Case
Summary
Recently, a federal district court in California (...)
The EU Commission fines a multinational technology company for abuse of dominant position in the smartphone operating system sector (Google Android)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On 18 July 2018 the European Commission imposed a record fine of €4.34 billion on Google. In such an innovative and competitive industry, a decision and fine (...)
The EU Commission imposes a record fine on a Big Tech company for restrictions on smartphone manufacturers and mobile network operators (Google Android)
Record Google fine over restrictions on Android devices draws strong reactions*
A record €4.34 billion (approximately $5 billion) fine was imposed on Google last week by the European Commission (EC) in response to the company’s imposition of restrictions on Android device manufacturers and (...)
The EU Commission fines a tech company for illegal tying in the market for third-party mobile device manufacturing (Google Android)
European Commission Fines Google for Illegal Tying*
The European Commission (“EC”) recently fined Google €4.34 billion, stating that “Google has imposed illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet (...)
The EU Commission fines a multinational technology company for abuse of dominance by imposing illegal restrictions on device manufacturers and mobile network operators (Google Android)
Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google’s search engine*
The European Commission has fined Google €4.34 billion for breaching EU antitrust rules. Since 2011, Google has imposed illegal (...)
The EU Commission fines a multinational company prompting it to announce new licensing options and structure its business model to comply with the Commission’s decision (Google Android)
Google has announced new licensing options and structure in its business model to comply with the Commission’s Android decision. These options came into effect on October 29, 2018. While full details over the announced chances are not yet known, in this piece we attempt to analyze the (...)
The US Supreme Court finds that there was no abuse of dominance in a dominant firm’s requirements against competitors because the market is a two-sided platform (American Express)
The Supreme Court’s American Express Decision – Two-sided Platforms and Harm to Consumers*
The Supreme Court determined, in its June 2018 decision, that American Express (“Amex”) did not violate the antitrust laws by requiring merchants to refrain from encouraging patrons at the point of (...)
The Indian Competition Authority opens investigation into abuse of dominance and price discrimination by national media conglomerate in the market for cable TV distribution (Thiruvananthapuram Entertainment Network / Star India)
CCI opens investigation against Star India Pvt. Ltd. for alleged abuse of dominance / price discrimination*
The Competition Commission of India (CCI) vide order dated December 29, 2017 has initiated an investigation against Star India Pvt. Ltd (“Star India/ Opposite Party”) for alleged (...)
The US District Court sets out FRAND rates for licensing standard-essential patents for 2G, 3G and 4G wireless communications (TCL / Ericsson)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On December 21, 2017, the District Court for the Central District of California issued TCL v. Ericsson, resolving a long-standing dispute between the parties (...)
The Italian Competition Authority imposes FRAND licensing to a local newspaper in a paradigm for the essential facility doctrine applied to copyrights (Società Iniziative Editoriali)
On 20 December 2017, the Italian Competition Authority (or “ICA”) issued a rare infringement decision in an abuse of dominance investigation against the publisher of a local daily newspaper (“SIE”), which refused to deal with a player (the “complainant” or “Euregio”) in the downstream local (...)
The Indian Competition Authority reinstates fine against the national governing body for cricket for abuse of dominance and granting of exclusive licenses (Board of Control for Cricket in India)
CCI re- imposes penalty of INR 52.24 crores on BCCI for abuse of dominance*
The Competition Commission of India (“Commission/CCI”) vide its Order dated November 29, 2017 has re-imposed the penalty of INR 52.24 Crores on the Board of Control for Cricket in India (“BCCI”) after fresh inquiry (...)
The US District Court for the Southern District of California receives a claim from a smartphone manufacturer against one of its suppliers over allegedly abusive wireless patents (Apple / Qualcomm)
Apple and Qualcomm proceeding*
In January 2017 Apple filed suit against Qualcomm over its allegedly abusive licensing practices regarding wireless patents.
Apple filed patent, antitrust and breach of contract claims against Qualcomm; this could result in damages of billions of dollars. (...)
The Spanish Competition Authority closes investigation against a tonic water company following submission of competition commitments in a case related to restrictions of parallel trade (Schweppes / Red Paralela)
The NMCC has closed with commitments an investigation against Schweppes, S.A. related to restrictions of parallel trade.
The Coca-Cola group and Orangina Schweppes Holding B.V. (OSHBV) share the ownership of the Schweppes trademark in the EU. Coca-Cola owns the Schweppes trademark in the UK (...)
The Indian Competition Authority opens an investigation for abuse of dominance by a global agricultural company but closes it due to its similarity with other open cases against the same company (Sri Rama Agri Genetics India / Mahyco Monsanto Biotech India)
CCI initiates investigation against Mahyco Monsanto Group entities for abuse of dominance*
CCI by its order dated March 14, 2017 has initiated an investigation against Mahyco Monsanto Group for abuse of dominance in relation to sub-license agreements through which Bt. technology is (...)
The EU General Court upholds the Commission’s decision making legally binding commitments remedying a finding of an abuse of dominance in the market for consolidated real-time data feeds (Morningstar / Thomson Reuters)
On 15 September 2016, the General Court upheld the Commission’s decision accepting commitments proposed by Thomson Reuters with a view to remedying a finding of an abuse of a dominant position in the market for consolidated real-time data feeds, in breach of Article 102 TFEU.
The Commission (...)
The EU Commission accepts remedies to alleviate concerns in film licensing contracts in cross-border pay-TV services (Paramount / Sky UK)
Antitrust: Commission accepts commitments by Paramount on cross-border pay-TV services*
The European Commission has made commitments offered by Paramount legally binding under EU antitrust rules. These address the Commission’s concerns regarding certain clauses in film licensing contracts (...)
The Moscow Arbitration Court confirms the Competition Authority’s decision and prescription concerning the operating systems for smartphones (Google)
In March 2016, the Moscow Arbitration Court expressed its support of the position of the Federal Antimonopoly Service (FAS Russia) on the case of abuse of dominance by the Google group of companies involving its actions on the Android operation system. The decision of FAS Russia was taken as (...)
The Indian Competition Authority opens investigation into abuse of dominance by global hybrid seeds manufacturer through its alleged excessive royalties (Ministry of Agriculture & Farmers Welfare / Mahyco Monsanto Biotech)
CCI to investigate global hybrid seeds giant Monsanto for abuse of dominance in relation to excessive royalties for Bt cotton seeds*
CCI by its majority order dated February 10, 2016 has initiated a detailed investigation into the allegedly excessive royalty fee charged by Monsanto, Inc. (...)
The Indian Competition Authority dismisses allegations of anticompetitive conduct against an antivirus software company due to lack of dominance (Symantec)
CCI closes case against an American Technology Company*
CCI vide its order dated November 17, 2015 closed the case filed by M/s Systweak Software, engaged in the development and distribution of computer software operating with Windows and Mac Operating Systems, against an American based (...)
The US Court of Appeals for the Ninth Circuit upholds that a college athletics association’s restrictions on compensation should be subject to antitrust scrutiny (O’Bannon / NCAA)
NCCA Gains Ground Against Student-Athletes In Appeal Of O’Bannon Case*
Last week, the United States Court of Appeals for the Ninth Circuit ruled that the NCAA may restrict colleges from compensating student-athletes beyond the cost of attendance, handing the NCAA a partial victory in its (...)
The Indian Competition Authority investigates a mobile telephony SEP holder for practices contrary to FRAND terms (iBall / Ericsson)
CCI commences another investigation against Ericsson in relation to Standard Essential Patents (SEPs)*
CCI by its order dated May 12, 2015 has initiated an investigation against M/s Telefonaktiebolaget L M Ericsson (Publ) & M/s Ericsson India Private Limited for alleged contravention of (...)
The US District Court for the District of Maryland upholds an antitrust action against a patent troll (Intellectual Ventures / Capital One)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On March 2, 2015, Judge Paul W. Grimm of the U.S. District Court for the District of Maryland offered a wide-ranging analysis of antitrust claims against the (...)
The Finnish Competition Authority issues report on collective management organisations and the promotion of healthy competition in the market of the copyrighted works (Teosto / Gramex / Kopiosto / Tuotos)
Finnish Competition and Consumer Authority: Numerous problems on the copyright market*
The ambiguity of the legislation and the complexity of the market serve to fortify the monopoly of the collective management organisations on the market, says the Finnish Competition and Consumer Authority (...)
The EU Commission receives an antitrust complaint concerning patent licensing practices engaged by an owner of numerous standard-essential patents on telecommunications standards (ZTE / Vringo)
ZTE files antitrust complaint with the European Commission against the patent-licensing practices of Vringo*
On 18 June 2014 ZTE Corporation (ZTE) announced that it filed an antitrust complaint with the European Commission against Vringo Inc.’s (Vringo) patent-licensing practices.
ZTE (...)
The Australian Competition Authority authorises for the second time arrangements for the acquisition and licensing of performing rights in music, subject to certain conditions (APRA)
ACCC requires improved dispute resolution in performing rights arrangements*
The Australian Competition and Consumer Commission has reauthorised the Australasian Performing Right Association’s (APRA) arrangements for the acquisition and licensing of performing rights in music, subject to (...)
Mergers
The Australian Competition Authority is not opposed to a pharmaceutical merger after offered divestments overcome competition concerns (Mylan / Upjohn)
Divestments overcome strong competition concerns with pharmaceutical merger*
The ACCC will not oppose Mylan NV’s proposed merger with Pfizer’s Upjohn Inc division, after Mylan and Upjohn offered a court-enforceable undertaking to divest three off-patent branded pharmaceuticals in response to (...)
The Australian Competition Authority accepts a proposed merger between two pharmaceutical companies despite concerns of a significant reduction in competition in the supply of the products (Mylan / Upjohn)
On 10 September 2020, the Australian Competition and Consumer Commission ("ACCC") decided to not oppose Mylan NV’s ("Mylan") proposed merger with Pfizer’s Upjohn Inc division ("Upjohn"), despite concerns that competition in the supply of pharmaceutical products to treat cardiovascular (...)
The Russian Competition Authority reaches an agreement with the HSE Technology Transfer Center to further simplify the terms of technology transfer in the breeding sector after negotiating with a pharma company (Bayer)
Bayer offered more favorable conditions for transfer of germplasm to russian breeders*
Russian breeding companies that receive germplasm transferred by Bayer as part of the FAS Russia’s ruling based on the result of the Bayer&Monsanto transaction will be fully exempt from paying (...)
The New Zealand Competition Authority clears merger of two IP professional service businesses (AJ Park / Baldwins)
Commission clears AJ Park’s acquisition of Baldwins*
The Commerce Commission has granted clearance for AJ Park IP Limited, in conjunction with AJ Park Law Limited (together, AJ Park), to acquire the assets of Baldwins Intellectual Property, Baldwin Holdings Limited, Baldwins Intellectual (...)
The EU Commission approves an acquisition of a payment solution provider’s account-to-account payment business by a global payment card company, subject to conditions (Nets / Mastercard)
Mergers: Commission approves acquisition of Nets’ account-to-account payment business by Mastercard, subject to conditions*
The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Nets’ account-to-account payment business by Mastercard. The decision (...)
The EU Commission conditionally clears an acquisition between a pharmaceutical company and an off-patent medicines producer and distributor (Milan / Upjohn)
On 22 April 2020, the Commission conditionally cleared Dutch pharmaceutical company Mylan’s acquisition of Upjohn, a division of Pfizer. Upjohn, which is based in China, produces and distributes off-patent branded and generic medicines. Mylan is also active in the production and distribution (...)
The EU Commission clears a merger subject to remedies in the market of telecommunications and TV broadcasting (Telia / Bonnier Broadcasting)
Mergers: Commission clears Telia’s acquisition of Bonnier Broadcasting, subject to conditions*
The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Bonnier Broadcasting by Telia. The approval is conditional on full compliance with a commitments (...)
The EU Commission clears subject to behavioural commitments a merger in the telecommunications sector (Telia / Bonnier Broadcasting)
On 12 November 2019, the European Commission (“Commission”) conditionally cleared Telia Company’s acquisition of Bonnier Broadcasting Company after a Phase II investigation.
Telia is a Swedish telecommunications company that provides fixed and mobile telecommunications, broadband and (...)
The Indian Competition Authority approves acquisition of global agricultural company by global pharmaceutical company subject to permanent divestments and 7-year FRAND licensing of genetically modified and non-GM agricultural products (Bayer / Monsanto)
CCI approves the acquisition of Monsanto by Bayer AG subject to structural modifications*
The CCI by its order dated June 14, 2018 has approved the proposed acquisition of Monsanto Company (Monsanto) by Bayer Aktiengesellschaft (Bayer). The CCI approved the proposed combination, subject to (...)
The Indian Competition Authority conditionally clears a merger between an international and a national telecommunications company (Bharti Airtel / Telenor)
India: CCI approves combination of Bharti Airtel and Telenor*
The CCI vide its order dated 30 May, 2017 has approved the amalgamation of Telenor India along with its assets, liabilities, interests and obligations with Airtel through a court driven scheme of merger.
Airtel, a part of the (...)
The US FTC challenges a merger using a monopolization theory to allege that the merger would eliminate nascent competition in the therapeutic adrenocorticotropic hormones (Questcor Pharmaceuticals / Mallinckrodt)
The Federal Trade Commission (FTC) challenged a consummated transaction using a monopolization theory to allege that the acquisition would eliminate “nascent” competition for therapeutic adrenocorticotropic hormones (ACTH) in the United States.
WHAT HAPPENED: Questcor Pharmaceuticals, Inc.’s (...)
The EU Commission clears the acquisition of two undertakings subject to commitment to license technology to any customer interested in FRAND conditions (Equens / Wordline)
EU: MERGER CASE CLEARED FOLLOWING OFFER OF FRAND TECHNOLOGY LICENSE*
On 20 April 2016, the European Commission (Commission) cleared, under its merger control rules, the acquisition of Equens and PaySquare by Worldline subject to, amongst others, a commitment to license technology to any (...)
The UK Competition Authority orders licensing remedy to meet concerns over horizontal unilateral effects resulting from a merger in the personal lubricants market (Reckitt Benckiser / Johnson & Johnson)
Introduction and background
On 4 November 2015, the UK Competition and Markets Authority ("CMA") accepted final undertakings from Reckitt Benckiser Group plc ("RB") and Johnson & Johnson ("J&J") in relation to RB’s proposed acquisition from J&J of the K-Y brand of personal (...)
The EU Commission conditionally approves online rights licensing and administration joint venture between collective management organizations (PRSfM / STIM / GEMA)
On 16 June 2015, the EU Commission conditionally approved the proposed joint venture between music collective management organisations PRS for music Limited (“PRSfm”) of the UK, Föreningen Svenska Tonsättares Internationella musikbyrå u.p.a. (“STIm”) of Sweden, and Gesellschaft für (...)
The EU Commission approves a joint venture for cross-border licensing of online music between three music collecting societies (PRSfM / STIM / GEMA)
Commission approves joint venture for cross-border licensing of online music between PRSfM, STIM and GEMA, subject to commitments*
Following an in-depth investigation, the European Commission has approved under the EU Merger Regulation the proposed creation of a joint venture for (...)
State Aids
The EU General Court dismisses an action for annulment brought by a competitor against a Commission decision finding no state aid in relation to licensing of software terms offered by a university (Scheepsbouwkundig Advies / en Rekencentrum)
State aid and (university) software licensing: who’s interested? (T-488/11)*
In its Judgment of 12 June 2014 in case Sarc v Commission, T-488/11, EU:T:2014:441, the General Court of the EU (GC) has assessed an interesting case concerned with the licensing of software developed at a Dutch (...)
Procedures
The French Constitutional Council upholds the constitutional right to appeal the Competition Authority’s decision to reject commitments in antitrust proceedings (Sony)
The French Conseil Constitutionnel Decides in Favour of Constitutional Right of Appeal of FCA’s Decisions Rejecting Commitments During Antitrust Proceedings*
On February 10, 2023, the French Constitutional Council (“Conseil constitutionnel”) considered that the second sentence of Article L. (...)
The Spanish Competition Authority analyses the proposals to market the National Football Federation’s broadcasting rights and determines that the procedure does not comply with competition law (Royal Spanish Football Federation)
The CNMC analyses the Royal Spanish Football Federation’s proposals to market the broadcasting rights for the Copa and the Supercopa to betting companies* Some of the conditions proposed by the Royal Spanish Football Federation (RFEF in Spanish) for the tender do not meet the requirements set (...)
The EU Court of Justice orders removal of a request for a preliminary ruling by the Regional Court of Dusseldorf regarding the licensing of standard essential patents in multi-layered supply chains (Nokia / Daimler)
On 24 June 2021, the Court of Justice of the European Union (“ECJ”) ordered the removal of a request for a preliminary ruling lodged by the Regional Court of Düsseldorf on 23 March 2021 in Case C-182/21, Nokia Technologies Oy v. Daimler AG.
The questions arose in a dispute between Nokia and (...)
The German Regional Court of Düsseldorf refers several questions to the EU Court of Justice regarding the licensing of standard essential patents within multi-level supply chains (Nokia / Daimler)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
In a decision of November 26, 2020, in a patent infringement case of Nokia Technologies Oy against Daimler AG, the Düsseldorf Regional Court (file number 4c O (...)
The US DoJ updates its business review letter to the Institute of Electrical and Electronics Engineers concerning their patent policy
Justice Department Updates 2015 Business Review Letter To The Institute Of Electrical And Electronics Engineers*
The Justice Department today issued a supplement to its Feb. 2, 2015 Business Review Letter from the Antitrust Division to the Institute of Electrical and Electronics Engineers, (...)
The Chinese State Administration for Market Regulation releases IP antitrust guidelines
China’s IP Antitrust Guidelines Released to the Public*
Preface
Recently, the Anti-Monopoly Guidelines for the Intellectual Property (“IP Guidelines”) was published in the Collection of Antitrust Regulations and Guidelines in 2019 released by the Anti-Monopoly Bureau of the State (...)
The Chinese State Administration for Market Regulation publishes anti-monopoly guidelines on intellectual property
In August 2020, the Anti-Monopoly Bureau of China’s State Administration for Market Regulation released four long-awaited sets of anti-monopoly guidelines addressing issues relating to leniency, commitments, the automobile industry, and intellectual property rights. The subjects of this White (...)
The Indian Competition Authority scuffles with the Controller of Patents due to an overlap in the scope and functioning of both authorities (Monsanto)
In its brief 11-year existence, the Competition Commission of India (“CCI”) has investigated anti-competitive conduct across several diverse sectors of the Indian economy. The CCI is the sole quasi-judicial and regulatory body established under the Competition Act, 2002 (as amended) (...)
The High Court of Delhi sides with the Indian Competition Authority and resolves the jurisdictional issue between the latter and the Intellectual Property Rights Authorities under the Patents Act (Monsanto)
Following the appeal made against several orders of Competition Commission of India (“CCI”) by Monsanto Holdings Pvt. Ltd. (“MHPL”), the Delhi High Court on 20th May, 2020 handed down the judgement of MHPL & Ors. v. CCI, clarifying mainly the jurisdictional issues between the IPR (...)
The German Federal Court of Justice issues its decision in a landmark case regarding SEPs and their FRAND licensing (Sisvel / Haier)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
The German Federal Court of Justice (FCJ) has issued its decision in a landmark case regarding standard essential patents (SEPs) and fair, reasonable, and (...)
The German Regional Court of Munich provides a guidance document which sets out how the Court intends to apply a landmark ruling of the EU Court of Justice (Huawei / ZTE)
In February 2020, the Regional Court of Munich published a guidance document that sets out how that court intends to apply the landmark ruling of the Court of Justice of the European Union (the “ECJ”) in Huawei v. ZTE (Case C-170/13). The ECJ’s ruling provided the practical steps which (...)
The Indian Supreme Court upholds Bombay High Court decision and clarifies jurisdiction between sectoral and competition regulator in telecommunications markets (Reliance Jio / Bharti Airtel / Idea Cellular / Vodafone India)
Supreme Court clears the jurisdictional conflict between CCI & TRAI- dismisses CCI and Jio appeals*
The Hon’ble Supreme Court by way of its judgement dated 05.12.2018 has finally cleared the uncertainty surrounding the jurisdiction of CCI and TRAI (Telecom Regulatory Authority of India). (...)
The EU Commission publishes a fact sheet on IP rights enforcement and a communication setting out the EU’s approach to standard essential patents
The European Commission today published a Fact Sheet on Intellectual Property Rights Enforcement and a Communication setting out the EU’s approach to Standard Essential Patents (SEPs).
In recognition of what it perceives as the strategic importance of SEPs and Europe’s need to grasp the (...)
The US Court of Appeals for the Third Circuit applies an appropriate post-Actavis pleading standard (Lipitor)
On August 21, 2017, the Third Circuit overturned a decision that had applied excessive pleading standards against plaintiffs challenging reverse-payment settlements. Writing for a unanimous panel, Chief Judge Smith held that, in the wake of FTC v. Actavis, 133 S. Ct. 2223 (2013), courts should (...)
The US Supreme Court holds that patentees extinguishes patents rights on a product once it makes a sale of it (Impression Products / Lexmark International)
Reversing long-standing Federal Circuit precedent, the United States Supreme Court has now held that a patentee extinguishes its patent rights on a product upon its sale of that product, regardless of (1) whether the patentee placed a restriction on the sale (prohibiting reuse or resale), or (...)
The Anti-monopoly Commission of China’s State Council releases a draft for comments of anti-monopoly guidelines on abuse of intellectual property rights
I. Introduction
On March 23, 2017, the Anti-monopoly Commission of China’s State Council released the Anti-monopoly Guidelines on Abuse of Intellectual Property Rights (Draft for Comments) (hereinafter referred to as the ’Draft’) on the official website of the Ministry of Commerce of China. (...)
The U.S. FTC releases long-awaited report on patent assertion entities
Three years after initiating an extensive sector study under section 6(b) of the FTC Act, the Federal Trade Commission has issued its report on the activities of patent assertion entities ("PAEs"). The report, titled Patent Assertion Entity Activity: An FTC Study ("PAE Report"), sets forth the (...)
The UK Competition Authority provides guidance for appealing energy price controls (British Gas and Northern Powergrid / Ofgem)
Appealing energy price controls: guidance for beginners from the CMA*
The CMA recently published its final determinations in two appeals brought by British Gas and Northern Powergrid against Ofgem’s electricity price controls for the next 8 years. The appeals were the first under section 11C (...)
The US District Court for the Southern District of New York dismisses a lawsuit over patent settlement where generics were granted early-entry licenses with acceleration clauses (Takeda Pharmaceuticals)
Better Early than Never: SDNY Dismisses Lawsuit over Patent Settlement where Generics were Granted Early-Entry Licenses with Acceleration Clauses*
On September 22, Judge Ronnie Abrams of the Southern District of New York dismissed an antitrust lawsuit against Takeda Pharmaceuticals and three (...)
The EU Commission publishes its 5th patent monitoring report
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
DG Competition of the European Commission just published its 5th patent monitoring report. It covers patent settlements entered into in 2013. Each year, the (...)
Regulations
The EU Commission publishes its final report on the e-commerce sector inquiry
On 10 May 2017, two years after launching its e-commerce sector inquiry on 6 May 2015, the European Commission published its final report (Final Report) on the inquiry. The inquiry was opened in the framework of the Commission’s broader Digital Single Market strategy, which was aimed at (...)
The UK Competition Authority partially upholds an appeal against the decision by the Gas and Electricity Markets Authority to modify the licences of two electricity distribution network operators (Northern Powergrid)
CMA partially upholds appeal on energy distribution licence changes*
The CMA has partially upheld an appeal against the decision by the Gas and Electricity Markets Authority to modify the licences of two electricity distribution network operators.
The Competition and Markets Authority (...)
The French Competition Authority publishes its opinion on the draft decree aimed at extending the duration of professional football broadcasting rights to five years
Extending the duration of professional football broadcasting rights to five years: The Autorité de la concurrence publishes its opinion on the draft decree and invites the Government to undertake a more comprehensive review*
Background
The Autorité de la concurrence has been referred to by (...)
The EU Commission publishes a proposal for a new set of regulations aimed at establishing a more transparent and effective framework for patent rights to promote the competitiveness and technological sovereignty of the European Union
On April 27, 2023, the European Commission published proposals for a new set of regulations aimed at establishing a more transparent and effective framework for patent rights. The overarching intention is to promote the competitiveness and technological sovereignty of the European Union, as (...)
The Thai Energy Regulatory Commission prescribes new requirements for the transfer of licenses in the energy sector
On December 20, 2022, the Notification re: Rules, Procedures, and Conditions on Transfer of Energy Licenses of the Thailand Energy Regulatory Commission (ERC) became effective. The notification sets out the new standard and procedure for transferring licenses for energy industry operation. The (...)
The Spanish Competition Authority calls on the national football federation to amend its proposal for commercializing the audiovisual rights of the new "Primera RFEF" category (RFEF)
The CNMC calls on the Royal Spanish Football Federation (RFEF) to amend their proposal for commercialising the audiovisual rights of the new "Primera RFEF" category The document breaches several requirements set out in Royal Decree-Act 5/2015. It affects the commercialisation of the rights in (...)
The US President Joe Biden signs an executive order aimed at promoting competition in the American economy using antitrust laws
What This Means for Merger Enforcement, Technology Platforms, Healthcare, Banking and Consumer Finance and Labor Markets
On Friday, July 9, 2021, President Biden signed a sweeping Executive Order (and provided an accompanying FACT Sheet) with the stated goal of using existing antitrust laws (...)
The US President Joe Biden signs an executive order instructing more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across the national economy
A new Executive Order signed by President Biden includes 72 initiatives instructing more than a dozen federal agencies, including the US Department of Justice and the Federal Trade Commission, to, according to the White House’s Fact Sheet, "promptly tackle some of the most pressing competition (...)
The US President Joe Biden issues sweeping executive order targeting corporate consolidation and anticompetitive activity in the labor, financial services, healthcare, transportation, telecommunications, agricultural, and tech markets
On 9 July 2021 President Biden signed a far-reaching executive order intended to promote competition in the American economy. The order targets perceived corporate consolidation and anticompetitive activity in the labor, financial services, health care, transportation, telecommunications, (...)
The US President Joe Biden signs an executive order on promoting competition in the American economy
In Short
The Situation: President Biden recently signed an Executive Order on Promoting Competition in the American Economy (the "Order") outlining 72 initiatives by more than a dozen federal agencies to combat "excessive" corporate consolidation and increase competition across the U.S. (...)
The US President Joe Biden publishes an executive order containing 72 initiatives to address competition concerns in several industries, including pharmaceuticals, biotech, and healthcare
Citing concerns about growing consolidation, reduced competition, and increasing prices, President Biden issued on July 9, 2021 a sweeping Executive Order containing 72 initiatives to address competition concerns in a number of industries, including pharmaceuticals, biotech, and healthcare. (...)
The EU Commission presents the pharmaceutical strategy for Europe
On 25 November 2020, the European Commission (the Commission) unveiled its Pharmaceutical Strategy for Europe (PSE), a wide-ranging document that discusses a series of broad policy statements, tentative considerations and concrete measures to tackle the many challenges faced by the (...)
The Finnish Competition Authority publishes its pharmacy market study and proposes measures to reduce the costs of medicines for consumers and society
The FCCA pharmacy market study proposes measures to reduce the costs of medicines for consumers and society*
The Finnish Competition and Consumer Authority (FCCA) has published an extensive study on the pharmacy market. The study produced a list of proposals that can reduce the (...)
The UK Competition Authority reaches its final price control determination on a dispute between the aviation regulator and air traffic control service provider without taking into account the effects of COVID-19 until they are more definitely known (Civil Aviation Authority / NERL)
CMA final decision on air traffic control charges*
The CMA has sent the CAA its final price control determination on a dispute between the aviation regulator and NERL regarding air traffic control charges.
The Competition and Markets Authority (CMA) has acted as the independent body (...)
The US DoJ and PTO issue a policy statement on standard-essential patents subject to a commitment to license on FRAND terms
After withdrawing support from a 2013 policy statement on appropriate remedies for standard-essential patents subject to a commitment to license on fair, reasonable and nondiscriminatory terms, the U.S. Department of Justice’s Antitrust Division and the U.S. Patent and Trademark Office, along (...)
The OECD holds a roundtable on the licensing of IP rights and competition law
IP rights, which create temporary exclusive rights that protect investments in research and some creative activities, have taken on an increasingly prominent and extensive role in economic activity – and in market competition as well. As the economy digitalises and the importance of intangible (...)
The US FTC and DOJ issue antitrust guidelines for the licensing of intellectual property
On January 12, 2017, the Federal Trade Commission and the Antitrust Division of the US Department of Justice issued updated Antitrust Guidelines for the Licensing of Intellectual Property (the Guidelines). The revised Guidelines follow nearly half a year of consideration and public commentary. (...)
The OECD holds a roundtable on generic pharmaceuticals and competition
Executive summary, by the Secretariat*
Considering the roundtable discussion and the delegates’ written contributions, the following key points emerge:
(1) The existence of originator drugs and innovation by originator companies is vital to develop new treatments against different (...)
Anticompetitive practices
The EU General Court upholds the EU Commission’s imposition of a combined fine of €60.5M on two pharmaceutical companies for their involvement in a “pay-for-delay” agreement (Teva / Cephalon)
On 18 October 2023, the European General Court (GC) delivered its judgment in Teva Pharmaceuticals Industries and Cephalon v European Commission (Case T-74/21). The GC upheld the European Commission’s (EC) decision from 2020 (Case AT.39686), which imposed a combined fine of €60.5 million on (...)
The EU General Court dismisses the application for annulment filed against the EU Commission’s decision that fined two companies for agreeing to delay for several years the market entry of the generic version of a drug after its patents had expired (Teva / Cephalon)
On 18 October 2023, the General Court dismissed the application for annulment filed by Teva Pharmaceutical Industries Ltd (“Teva”) and its subsidiary Cephalon Inc (“Cephalon”) challenging the European Commission’s (“Commission”) decision that fined the two companies for breaching EU’s (...)
The EU General Court upholds the Commission’s infringement decision finding that the patent settlement agreement between two pharmaceutical companies restricted competition by object and by effect (Teva / Cephalon)
EU General Court Issues Judgment in Teva/Cephalon Patent Settlement Case*
On October 18, 2023, the General Court of the European Union (GC) issued its judgment in Case T-74/21, Teva Pharmaceutical Industries and Cephalon v Commission. The GC upheld the infringement decision of the European (...)
The EU General Court confirms that the geo-blocking of activation keys of a video game digital distribution platform infringes competition law (Valve / Bandai / Capcom / Focus Home / Koch Media / ZeniMax)
Online video games: the General Court confirms that geo-blocking of activation keys for the Steam platform infringed EU competition law*
In agreeing bilaterally to that geo-blocking, the operator of the Steam platform, Valve and five PC video games publishers unlawfully restricted (...)
The EU General Court holds that the geo-blocking of activation keys of a video game digital distribution platform constitutes an infringement by object (Valve / Bandai / Capcom / Focus Home / Koch Media / ZeniMax)
On 27 September 2023, the General Court handed down its judgment dismissing the action brought by Valve Corporation (“Valve”) against a Commission decision adopted in 2021 finding that Valve’s geo-blocking practices constituted a by-object infringement of Article 101(1) TFEU and imposing a (...)
The EU General Court holds that geo-blocking of video games breaches competition law (Valve / Bandai / Capcom / Focus Home / Koch Media / ZeniMax)
General Court finds geo-blocking of video games breaches EU competition law*
Commission’s finding upheld that Valve and five PC game publishers had anti-competitive ’geo-blocking’ agreements
The US entertainment technology group Valve had sought to challenge a €1.6 million fine relating to (...)
The US Court of Appeals for the DC Circuit unanimously dismisses the FTC’s antitrust suit against a pharmaceutical manufacturer for allegedly concluding exclusionary non-compete agreement with a competitor (Endo / Impax)
A panel of judges from the U.S. Court of Appeals for the D.C. Circuit unanimously affirmed the 2022 dismissal of an antitrust case filed by the Federal Trade Commission against pharmaceutical manufacturer Endo Pharmaceuticals (Endo).
The FTC’s case against Endo involved a novel challenge to (...)
The EU Commission issues a Statement of Objections to a French fashion company and its licensee over distribution and licensing practices for clothing (Pierre Cardin / Ahlers)
Antitrust: Commission sends Statement of Objections to Pierre Cardin and its licensee Ahlers over distribution and licensing practices for clothing*
The European Commission has informed Pierre Cardin and its licensee Ahlers of its preliminary view that the companies may have breached EU (...)
The Amsterdam Court of Appeal rules that two Dutch collective rights organisations abused their joint dominant position by applying unequal conditions when licensing music to businesses (Buma / Stemra)
Introduction
The Court of Appeal of Amsterdam (Gerechtshof Amsterdam) ruled that Dutch collective rights management organisations ‘Buma’ and ‘Stemra’ abused their (joint) dominant position by applying unequal conditions in relation to business licensing of music for use in cafés, (...)
The Australian Competition Authority refuses to give an authorisation for the provisions of a settlement and licence agreement between pharmaceutical companies (Celgene / Juno / Natco)
ACCC not satisfied of claimed benefits from proposed settlement between pharmaceutical companies*
The ACCC proposes to deny authorisation for the provisions of a settlement and licence agreement between Celgene and generic drug companies, Juno and Natco. The companies are seeking (...)
The US FTC approves a final order requiring a State dental licensing agency to stop unreasonably excluding lower-cost online and teledentistry providers from competing (Alabama Board of Dental Examiners)
FTC Approves Final Order Requiring Alabama Board of Dental Examiners to Stop Unreasonably Excluding Lower Cost Online and Teledentistry Providers from Competing*
Following a public comment period, the Federal Trade Commission has approved a final order settling charges that the Alabama Board (...)
The US FTC reaches proposed settlement with a State dental licensing agency regarding charges that it unreasonably excluded lower-cost online and teledentistry providers (Alabama Board of Dental Examiners)
Alabama Board of Dental Examiners Agrees to Settle FTC Charges that It Unreasonably Excluded Lower Cost Online and Teledentistry Providers from Competition*
To settle FTC charges that its actions violated the antitrust laws, the Board of Dental Examiners of Alabama has agreed to stop (...)
The Italian Competition Authority initiates probe against the incumbent telecom operator and live sports streaming service for possible anticompetitive practices in broadcasting the Serie A football matches (Tim / Dazn)
On 8 July 2021, the Italian Competition Authority (“AGCM”) opened an antitrust probe against TIM (the Italian incumbent telecom operator) and DAZN (the live sports streaming service) for possible anti-competitive behaviours stemming from the TV rights agreement between the two companies to (...)
The Italian Competition Authority initiates proceedings against two pay-TV providers for possible anticompetitive practices through the rights agreement for the Liga A football series (Tim / Dazn)
ICA: proceeding opened against Tim and Dazn for possible anti-competitive practice through the TV rights agreement for the Liga A football series*
The Authority will evaluate the adoption of precautionary measures only if it finds that considerable and irreparable damage to competition (...)
The Italian Competition Authority issues a landmark judgment in a proceeding for unfair commercial practices in the distribution and selling of patented seedless grapes in Italy (Puglia Association of Growers / Confederazione Italiana Agricoltori Puglia / Comitato Liberi Agricoltori e Commercianti Pugliesi e Lucani)
On 25 May 2021, the Italian Antitrust Authority (“AGCM”) issued a landmark judgment in a proceeding for unfair commercial practices in the distribution and selling of patented seedless grapes in Italy. The proceeding represents one of the few of its kind, not only for the close interlink (...)
The Australian Competition Authority authorises a dairy farmers’ organisation to implement a licensing scheme for the use of its logo on qualifying dairy products (Queensland Dairyfarmers’ Organisation)
ACCC authorises Queensland Dairyfarmers’ Organisation to implement ’Fair Go Dairy’ licensing scheme*
The ACCC has authorised the Queensland Dairyfarmers’ Organisation Limited (QDO) to give effect to its proposed ‘Fair Go Dairy’ licensing scheme for five years.
Under the scheme, QDO will (...)
The Italian Supreme Administrative Court rejects the Competition Authority’s judgment, ruling that the allocation of broadcasting rights is not the result of an anticompetitive agreement between companies in the pay-TV sector (League / Infront / Sky / Mediaset)
On 28 December 2020, the Italian Supreme Administrative Court (Consiglio di Stato – "CDS") issued a judgment marking the last act in the national judicial dispute related to the assignment of the Lega Serie A (i.e. the main national professional league in Italy – "the League") broadcasting (...)
The Australian Competition Authority proposes to authorise the national dairy farmers association licensing scheme (Fair Go Dairy)
ACCC proposes to authorise ’Fair Go Dairy’ licensing scheme*
The ACCC is proposing to authorise the Queensland Dairyfarmers’ Organisation Limited’s (QDO) Fair Go Dairy licensing scheme for five years.
Under the scheme, QDO will grant processors a licence to use the ‘Fair Go Dairy’ logo on (...)
The EU Court of Justice annuls the Commission’s settlement decision for its failure to consider adverse effects on third party interests (Paramount / Sky / Groupe Canal+)
On 9 December 2020, the European Court of Justice (“ECJ”) upheld Canal +’s appeal against the General Court’s (“GC”) judgment that had upheld the Commission’s commitments decision in the Paramount case, and annulled the GC’s judgment as well as the Commission decision (Case C-132/19 P). The (...)
The EU Court of Justice annuls the Commission’s decision on a pay-TV service company’s commitments for breaching the principle of proportionality (Paramount / Sky / Groupe Canal +)
On December 9, 2020, the Court of Justice of the European Union granted Canal+’s application to annul the European Commission’s decision under Article 9 of Regulation No. 1/2003 to adopt commitments offered by Paramount (the “Commitments Decision”).
The commitments prohibited Paramount from (...)
The EU Court of Justice annuls a Commission’s decision accepting legally binding commitments offered by a company aimed at addressing an investigation into cross-border pay-TV in the EU (Paramount / Sky / Groupe Canal +)
On 9 December 2020, the Court of Justice of the EU (“CJEU”) annulled a European Commission decision accepting legally binding commitments offered by Paramount aimed at addressing a Commission investigation into cross-border pay-TV in the EU (the “Paramount Commitment Decision”). The CJEU also (...)
The EU Court of Justice sets aside a judgment of the General Court upholding a decision of the Commission to make binding commitments offered by an American film studio on cross-border pay-TV services (Paramount)
On 9 December 2020, the European Court of Justice ("ECJ") set aside a judgment of the General Court upholding a 2016 decision by the European Commission ("Commission") to make binding commitments offered by Paramount on cross-border pay-TV services. This is the first time that a commitment (...)
The EU Court of Justice annuls the Commission’s decision that made commitments legally binding for companies in the pay-TV services sector (Paramount / Sky / Canal+)
Canal+ (C-132/19 P): The Court of Justice Annuls Commitment Decision – The Importance of Third Party Contractual Rights*
Today, the Court of Justice annulled the Commission decision that made commitments legally binding for Paramount. This decision is the first annulment of a commitment (...)
The EU Court of Justice annuls a Commission decision allowing a TV company to preserve competition on the markets of pay-TV services (Paramount / Sky / Groupe Canal+)
The Court of Justice annuls a Commission decision making binding the commitments offered by a company in order to preserve competition on the markets*
The fact that it is possible, for the contracting partners of a company which has made commitments not to comply with certain contractual (...)
The EU Commission fines pharmaceutical companies for pay-for-delay agreement (Teva / Cephalon)
On 26 November 2020, the European Commission ("Commission") announced that it had fined the pharmaceutical companies Teva and Cephalon EUR 60.5 million for agreeing to delay for several years the market entry of a cheaper generic version of Cephalon’s drug for sleep disorders, modafinil, after (...)
The EU Commission fines two pharmaceutical companies €60.5 million for delaying the entry of cheaper generic medicine for sleep disorders (Teva / Cephalon)
Antitrust: Commission fines Teva and Cephalon €60.5 million for delaying entry of cheaper generic medicine*
The European Commission has fined the pharmaceutical companies Teva and Cephalon €60.5 million for agreeing to delay for several years the market entry of a cheaper generic version of (...)
The EU Commission fines two pharmaceutical companies for a pay-for-delay patent settlement agreement (Teva / Cephalon)
On 26 November 2020, the European Commission (the Commission) brought to an end a long running competition case by finding against Cephalon and Teva on account of a “pay-for-delay” patent settlement agreement involving modafinil, the active substance of a sleeping disorder medicine (see, (...)
The UK Supreme Court confirms that English courts may set the terms of global licences to portfolios of standard essential patents (Unwired Planet / Huawei)
English courts given green light to set terms of global FRAND licences*
On 26 August 2020, the UK Supreme Court (UKSC) gave its eagerly awaited judgment in Unwired Planet v Huawei and Conversant v Huawei & ZTE. In a unanimous policy-driven decision, the Court dismissed the appeals (...)
The UK Supreme Court confirms that it is possible to set global FRAND rates and global licences to portfolios of standard-essential patents (Unwired Planet / Huawei)
The U.K. Supreme Court’s 26 August ruling on standard-essential patents (SEPs) is the latest in a series of recent decisions that are likely to have a profound effect on FRAND license negotiations across the globe, in particular for the next generation 4G and 5G mobile telecommunication (...)
The UK Supreme Court hands down a judgment involving a software and a telecommunications company, providing answers to questions concerning the English Courts’ approach to FRAND disputes (Unwired Planet / Huawei)
The UK Supreme Court has handed down its long-awaited judgment in the Unwired Planet v Huawei and Conversant v Huawei & ZTE proceedings ([2020] UKSC 37), providing answers on several key questions concerning the English Courts’ approach to FRAND disputes.
In a unanimous judgment, the (...)
The UK Supreme Court holds that an English court can enjoin infringement of a UK SEP where the infringer is willing to take a UK license, but refuses to take a worldwide licence on FRAND terms (Huawei / Unwired Planet)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On 26 August, 2020, the UK Supreme Court decided a standard-essential patent (SEP) dispute between Huawei and Unwired Planet. [1]
The Supreme Court held that (...)
The Mannheim Regional Court grants injunctive relief to a telecommunication provider and clarifies the application of FRAND in the supply chain (Daimler / Nokia)
According to a press release of the Mannheim Regional Court of 18 August 2020 in the matter Nokia v Daimler, the Regional Court of Mannheim (the “Court”) ruled in favour of Nokia that Daimler had infringed Nokia’s patent and could not invoke a FRAND objection. The Court held that Daimler and a (...)
The US District Court for the Southern District of New York terminates long-standing Paramount consent decrees, thereby allowing after 7 decades the classic movie studios to form closer agreements with movie distributors (Paramount Pictures)
Federal Court Terminates Paramount Consent Decrees*
A federal court in the Southern District of New York today terminated the Paramount Consent Decrees, which for over seventy years have regulated how certain movie studios distribute films to movie theatres. The review and termination of (...)
The US District Court for the Northern District of Illinois dismisses antitrust case challenging patent thicket (Humira)
On June 8, 2020, the U.S. District Court for the Northern District of Illinois granted defendants’ motion to dismiss an antitrust case challenging behavior arising out of a massive collection of patents known as a “patent thicket.” In re Humira (Adalimumab) Antitrust Litigation, 2020 WL (...)
The EU Commission imposes fines totally €14M on several companies including a film and TV production company for restricting sales of film merchandise products (NBCUniversal)
Antitrust: Commission fines NBCUniversal €14.3 million for restricting sales of film merchandise products*
The European Commission has fined several companies belonging to Comcast Corporation, including NBCUniversal LLC, (“NBCUniversal”) €14 327 000 for restricting traders from selling (...)
The EU Commission imposes a €14.3 million fine on a film and TV production company for territorial and online sale restrictions of merchandising products (NBCUniversal)
On 30 January 2020, the European Commission (“Commission”) announced its decision to fine several companies belonging to Comcast Corporation, including NBCUniversal, € 14,327,000 for limiting the ability of licensees to sell licensed merchandising products to other EEA countries and (...)
The EU Commission reiterates in a case regarding a film and TV production company its position that if a business allows for the non-exclusive licensing of its products in the EEA the licensor can no longer control the sale of the product (NBCUniversal)
The European Commission has reiterated its position that if a business allows for the non-exclusive licensing of its products in the EEA, such licensor can no longer control where, to whom, and in what manner (online/off-line) the products can be sold within the EEA.
On 30 January 2020, the (...)
The EU Commission imposes a €14.3 million fine on a film and TV production company for restricting sales of licensed film merchandise (NBCUniversal)
On 30 January 2020, the Commission imposed a fine on NBCUniversal for the restriction of sales of film merchandise relating to Minions and Shrek, among others.
In June 2017, the Commission opened investigations into the licensing deals entered into by Nike, Sanrio (Hello Kitty), and (...)
The EU Commission fines a film and TV production company for implementing territorial and online sale restrictions through merchandising license agreements (NBCUniversal)
On 30 January 2020, the European Commission (‘the Commission’) announced its decision to fine several film companies belonging to Comcast Corporation, including NBCUniversal LLC (‘Universal’), €14,327,000 for the implementation of territorial, consumer and online sales restrictions through (...)
The EU Commission fines a company for restricting cross-border sales of merchandising products (Sanrio)
The investigation of the Commission has found that Sanrio banned traders from selling licensed merchandise of Hello Kitty and other characters outside their territorial coverage but within the European Economic Area (“EEA”).
Sanrio is a Japanese company that designs, licenses, produces and (...)
The EU Commission fines a company €6.2M for restricting cross-border sales of merchandising products featuring their brand characters (Sanrio)
Antitrust: Commission fines Sanrio €6.2 million for restricting cross-border sales of merchandising products featuring Hello Kitty characters*
The European Commission has fined Sanrio €6.2 million for banning traders from selling licensed merchandise to other countries within the EEA. This (...)
The EU Commission fines a company €6.2 million for restricting cross-border sales of merchandising products (Sanrio)
On 9 July 2019, the Japanese company Sanrio was fined € 6.2 million by the European Commission (“Commission”) for infringing Article 101 Treaty on the Functioning of the European Union by restricting cross-border sales by its licensees.
According to the Commission’s press release, the case (...)
The Shanghai Intellectual Property Court holds that fictitiously increasing the number of views of videos is an act of false propaganda (Feiyi / IQiYi)
From the perspective of anti-unfair competition law, Feiyi Company fictitiously increased the video visits of IQiYi’s website by technical means - the first case of inflating traffic on video websites in China.
In recent years, the excessive pursuit of traffic in the Internet industry has (...)
The Hague Court of Appeal delivers its judgment on an alleged infringement of a patent essential to the universal mobile telecommunications system standard (Asus / Philips)
On 7 May 2019, the Court of Appeal of the Hague delivered its judgment in a case pitting Philips against ASUS regarding the alleged infringement of Philips’ European patent EP 1 623 511, which was considered essential to the High Speed Uplink Packet Access (“HSUPA”) protocol of the Universal (...)
The Paris Court of Appeal delivers the first judgement on FRAND terms and applies the French legislation implementing the EU directive for trade secrets (Conversant / LG)
On 16 April 2019, the Paris Court of Appeal delivered a judgment in Conversant v. LG, a case dealing with the concept of licensing under fair, reasonable and non-discriminatory (“FRAND”) terms. While the court did not set a much-anticipated FRAND royalty rate, the case is noteworthy because of (...)
The UK Competition Authority launches an investigation into online gaming companies’ roll-over contracts
The UK Competition and Markets Authority (CMA) announced on 05 April 2019 that it is launching an investigation into online gaming companies’ use of auto-renewal, cancellation, and refund policies in relation to online services. The investigation is being conducted using the CMA’s consumer (...)
The EU Commission imposes €12.5 million fine on a company for restricting cross-border sales of merchandising products (Nike)
On 25 March 2019, the European Commission (“Commission”) announced its decision to fine Nike € 12,555,000 for limiting the ability of licensees to sell licensed merchandising products to other EEA countries. According to the Commission’s press release, the restrictions concerned the (...)
The EU Commission fines a company for restricting the cross-border and online sales of branded merchandise by its European licensees (Nike)
E-Commerce in Europe: A Look into Nike’s Huge Antitrust Fines*
On March 25, the European Commission (EC) fined Nike €12.5 million for restricting cross-border and online sales of branded merchandise by its European licensees. In December last year, the EC fined Guess €40 million for imposing (...)
The EU Commission accepts remedies proposed by entertainment companies ending competition concerns in the pay-TV services market (Disney / NBC Universal / Sony Pictures / Warner Bros / Sky)
Antitrust: Commission accepts commitments by Disney, NBCUniversal, Sony Pictures, Warner Bros. and Sky on cross-border pay-TV services*
The European Commission has made commitments offered by Disney, NBCUniversal, Sony Pictures, Warner Bros. and Sky legally binding under EU antitrust rules. (...)
The EU Commission accepts final commitments in a cross-border access to pay-TV case (Disney / NBC Universal / Sony Pictures / Warner Bros / Sky)
According to a press release issued on 7 March 2019, the European Commission (“Commission”) has formally accepted the commitments offered by Disney, NBC Universal, Sony Pictures, Warner Bros. and Sky in Case 40.023, Cross-border access to pay-TV, under Article 9 of Regulation 1/2003. The (...)
The EU General Court rules that territorial exclusivity clauses in copyright licensing agreements raise competition concerns (Canal+)
On 12 December 2018, the EU General Court (“GC” or “Court”) dismissed the application for annulment which Canal + SA (“Canal +”) had brought against a European Commission (“Commission”) decision that had made commitments offered by Paramount Pictures Ltd (“Paramount”) in the context of (...)
The US District Court for the Eastern District of Texas declares that a licensing offer based on end-device is compliant with FRAND commitments (HTC / Ericsson)
Standard-essential patent holders and implementers may face uncertainty regarding licensing practices following a May 23 Texas court ruling. In the ruling, a Texas federal judge reached a conclusion different from a recent California court decision — FTC v. Qualcomm — on the question of (...)
The French Competition Authority publishes its long-awaited sector-specific investigation into online advertising
Almost two years after announcing the opening of a vast sector-specific investigation on its own initiative, the French Competition Authority (FCA) has just made public its long awaited opinion regarding the online advertising sector.
The opinion examines the mechanisms and competitive (...)
The US Court of Appeals for the Ninth Circuit upholds dismissal of an antitrust suit where a jury verdict in a parallel case found no patent infringement (Casacade Computer / RPX / Samsung)
What Happened: Wading into the merging streams of antitrust and patents, the US Court of Appeals for the Ninth Circuit upheld dismissal of an antitrust suit where a jury verdict in a parallel case found no patent infringement. Cascades Computer Innovation, LLC v. RPX Corp. and Samsung (...)
The U.S. FTC and DOJ publish revised antitrust guidelines for the licensing of intellectual property
FTC and DOJ finalize revised Antitrust Guidelines for the Licensing of Intellectual Property*
On January 12, 2017 the DOJ and FTC jointly issued final updated Antitrust Guidelines for the Licensing of Intellectual Property (Updated IP Guidelines). Acting Assistant Attorney General Renata (...)
The US Federal Trade Commission issues report on patent assertion entities
On October 6, 2016, the Federal Trade Commission (FTC) issued its long-awaited report on patent assertion entities (PAEs). Sometimes called “patent trolls,” these actors have elicited fierce debate, with critics lamenting their ability to demand ransom money and hold up an industry while (...)
The US Court of Appeals for the Third Circuit offers misguided analysis of product hopping (Mayne / Warner Chilcott / Mylan)
On September 28, 2016, the U.S. Court of Appeals for the Third Circuit issued a misguided ruling granting defendants’ motion for summary judgment and ignoring the regulatory framework relevant to “product hopping,” by which a drug company switches from one version of a drug to another, (...)
The EU Commission issues its preliminary report on its e-commerce sector inquiry
Antitrust: Commission publishes initial findings of e-commerce sector inquiry*
The European Commission’s preliminary report on its e-commerce sector inquiry confirms the fast growth of e-commerce in the EU and identifies business practices that might restrict competition and limit consumer (...)
The EU Commission accepts commitments that correct passive sales restrictions caused by geo-blocking of audio-visual content (Paramount)
On 26 July 2016, the Commission made legally binding the commitments offered by Paramount Pictures (“Paramount”) as it considered that they adequately addressed its concerns regarding specific contractual clauses restricting passive sales.
In July 2015, the Commission had expressed concerns (...)
The EU Commission accepts commitments on geo-blocking practices restricting passive sales of audio-visual content (Paramount)
Territorial restrictions in media content licensing – lessons from the Paramount commitments decision* The European Commission’s battle against territorial restrictions in media content licences continues on a number of fronts. One of those is an investigation launched in January 2014 into (...)
The EU Court of Justice rules that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
License fees, invalid patents and Article 101 TFEU: Genentech v Hoechst and Sanofi Aventis* Consider an agreement under which a license fee is payable for use of a patented technology even if it transpires that the patent is invalid. Is such an agreement contrary to Article 101 TFEU? The (...)
The EU Court of Justice rules that royalties for unpatented technology are not necessarily anticompetitive (Genentech)
EU COURT RULES THAT ROYALTIES FOR UNPATENTED TECHNOLOGY ARE NOT NECESSARILY ANTICOMPETITIVE*
On 7 July 2016, the Court of Justice of the European Union (CJEU) handed down a judgment on whether Article 101 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as (...)
The EU Court of Justice rules that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
On 7 July 2016, the Court of Justice of the European Union (the “ECJ”) issued its judgment on a request for a preliminary ruling from the Paris Court of Appeal, which had enquired whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the (...)
The Italian Competition Authority fines undertakings for an anticompetitive agreement concerning the assignment of broadcasting rights to Italian football league matches (Vendita diritti televisivi Serie A 2015-2018)
In its decision of 19 April 2016, the Italian Competition Authority (“ICA”) imposed fines totalling EUR 66 million on Sky and Mediaset, the main television operators in the pay-tv market, and on the Italian Football League (“Lega Calcio”) and its advisor Infront, for breach of Article 101 of (...)
Advocate General Wathelet concludes that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
On 17 March 2016, Advocate General Wathelet issued his opinion on a request for a preliminary ruling from the Paris Court of Appeal, which inquired as to whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the patent, which is the subject (...)
The Italian Council of State refers to the EU Court of Justice for a preliminary ruling in a case regarding an agreement to artificially differentiate competing drugs (Roche / Novartis)
By its decision of 11 March 2016 , the Italian Administrative Court of Last Instance (“Council of State”) referred to the European Court of Justice certain preliminary questions raised by Novartis and Roche in the appeals brought against the judgment of the Administrative Court of First (...)
The Competition Commission of India finds prima facie case for abuse of dominance and anti-competitive terms in technology licensing agreement (Mahyco Monsanto Biotech)
Background
Reference from Ministry of Agriculture and separate complaint from Nuziveedu Seeds Ltd and certain other seed companies alleging abuse of dominant position and anti-competitive practices in Bt-cotton technology licensing process by Mahyco Monsanto Biotech (MMB) has led to this (...)
The EU Commission issues a statement of objection against companies offering pay-TV services for geographical market sharing (Disney / NBCUniversal / Paramount Pictures / Sony / Twentieth Century Fox / Warner Bros)
The European Commission’s Battle Over Pay-TV Services: Can Segmenting the EU Market Be Justified?*
Yesterday the European Commission issued a Statement of Objections to Sky UK and six major US film studios, taking the preliminary view that restrictions put in place to prevent consumers (...)
The US Court of Appeals for the Third Circuit concludes that the Actavis ruling applies to non-cash payments (Lamictal)
On June 26, 2015, in the first federal appellate drug patent settlement ruling since the Supreme Court’s decision in FTC v. Actavis, 133 S. Ct. 2223 (2013), the U.S. Court of Appeals for the Third Circuit overturned a lower court decision granting a motion to dismiss for defendants. Writing (...)
The Court of Appeal for the District of Columbia rejects a challenge to an FTC rule that makes the HSR Act reporting requirements cover pharmaceutical patent licenses that transfer all commercially significant rights (PhRMA)
The D.C. Circuit has rejected a challenge by the Pharmaceutical Research and Manufacturers of America ("PhRMA") to an FTC rule that makes the HSR Act reporting requirements cover pharmaceutical patent licenses that transfer "all commercially significant rights." The rule, adopted in 2013, (...)
The Californian Supreme Court delineates a structured rule of reason analysis for evaluating reverse payments or pay-for-delay settlements (Cipro)
California Supreme Court Delineates a Structured Rule of Reason Analysis for Evaluating Reverse Payment or Pay-for-Delay Settlements*
On May 7, 2015, the California Supreme Court issued its long-awaited decision in In re Cipro Cases I & II, Case No. S198616 (May 7, 2015) (Cipro). Cipro (...)
The Californian Supreme Court crafts a structured rule of reason test for evaluating pay-for-delay settlements (Cipro)
Following Actavis, California Supreme Court Crafts “Structured Rule of Reason” Test for Evaluating Pay-for-Delay Settlements*
Last Thursday the Supreme Court of California decided In re Cipro Cases I & II, No. S198616 (Cal. May 7, 2015), holding that reverse payment, or “pay-for-delay,” (...)
The Californian Supreme Court cements vigorous scrutiny of reverse-payment settlements (Cipro)
On May 7, 2015, in the first appellate reverse-payment ruling since the U.S. Supreme Court’s decision in FTC v. Actavis, 133 S. Ct. 2223 (2013), the California Supreme Court overturned a lower court decision granting summary judgment for defendants. On behalf of all seven Justices, Justice (...)
The US Supreme Court hears arguments before the decision on whether post-expiration license royalty obligations are caught in the web of patent policies or antitrust analysis (Kimble / Marvel)
Supreme Court Seeks To Untangle Patent And Antitrust Principles Caught In Spider-Man’s Web*
The Supreme Court heard oral argument today on whether litigation over a toy based on Spider-Man’s web should be used to vanquish a 50-year-old precedent precluding patent owners from collecting (...)
The Chinese Ministry of Industry and Information Technology - Electronic Intellectual Property Center releases a draft “Template for Intellectual Property Policies in Industry Standardization Organizations”
The Electronic Intellectual Property Center of China’s Ministry of Industry and Information Technology (MIIT) has released a draft “Template for Intellectual Property Policies in Industry Standardization Organizations” (the Draft Template), seeking public comments by January 30. The Draft (...)
The US Court of Appeals for the Federal Circuit decides on the reasonableness of licensing royalty for standard-essential patents (Ericsson / D-Link)
Reasonableness Of Licensing Royalties Is On Trial As Courts And Standard-Setting Organizations Wrestle With Standard-Essential Patents*
The ongoing battle over what constitutes a “reasonable” licensing royalty for standard-essential patents has now been joined by the U.S. Court of Appeals (...)
The Advocate General Wathelet renders his opinion and provides a fresh perspective on FRAND licenses (Huawei / ZTE)
The long-awaited Opinion delivered by Advocate General Wathelet on 20 November 2014 in the dispute opposing Huawei and ZTE (Case C-170/13) sheds a new and bright light on the legal landscape for injunctions in SEP-FRAND licensing contexts, provided the Court of Justice follows the Advocate (...)
The US FTC bars a patent assertion entity from using deceptive tactics through a settlement (MPHJ)
FTC settlement bars patent assertion entity from using deceptive tactics*
On 6 November 2014, the Federal Trade Commission communicated that MPHJ Technology Investments (“MPHJ”) and its law firm have agreed to settle Federal Trade Commission charges that they used deceptive sales claims and (...)
The EU Commission sends formal charges to companies regarding a cooperation agreement which may have limited availability of a product and technical development (Honeywell / DuPont)
Commission sends formal charges to Honeywell and DuPont regarding cooperation on car air conditioning refrigerant*
On 21 October 2014 the European Commission issued formal charges to Honeywell and DuPont, based on allegations that the cooperation agreement they entered into in 2010 on the (...)
The US FTC files a complaint against five pharmaceutical companies for pay-for-delay settlements (AbbVie)
On September 8, 2014, the Federal Trade Commission (FTC) filed a federal antitrust complaint in the United States District Court for the Eastern District of Pennsylvania against defendants AbbVie, Abbott Laboratories, Unimed Pharmaceuticals, Besins Healthcare and Teva Pharmaceuticals alleging (...)
The US District Court for the District of Rhode Island issues concerning ruling on drug patent settlements (Loestrin)
On September 4, 2014, Judge William Smith of the U.S. District Court for the District of Rhode Island issued a concerning ruling on drug patent settlements. In In re Loestrin 24 FE Antitrust Litigation, 2014 WL 4368924 (D.R.I., Sept. 4, 2014), Judge Smith misapplied the Supreme Court’s (...)
The US District Court for the Northern District of California finds that an athletics association’s rules restricting payments to student-athletes violate antitrust laws (O’Bannon / NCAA)
On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association (NCAA), Judge Claudia Wilken of the U.S. District Court for the Northern District of California found that the NCAA violated the antitrust laws by enacting rules that prevented student-athletes from being paid for the (...)
The US District Court for the Northern District of California holds that NCAA restrictions on college players exploiting and receiving licensing revenue from the use of their names, images and likenesses violate antitrust law (O’Bannon / NCAA)
NCAA’s Loss In O’Bannon Trial May Be Only A Partial Victory For Competition*
Although competition scored a win on Friday in the student athletes’ antitrust suit led by former UCLA basketball player Ed O’Bannon against the NCAA, it wasn’t a complete blowout.
Judge Claudia Wilken of the U.S. (...)
The US FTC approves two final orders settling charges that ski equipment manufacturers for many years illegally agreed not to compete for one another’s ski endorsers or employees (Marker Völkl / Tecnica Group)
The FTC Orders Ski-Equipment Companies to Start Competing Again*
Sometimes competition is a real hassle.
If your company has a loyal customer or longtime employee, you feel betrayed when a competitor swoops in to try to “steal them.”
If you are the Miami Heat, you probably don’t like (...)
The English High Court dismisses a competition law challenge to a disciplinary rule imposing sanctions for actions assessed to be inimical to the sport (Baker / The British Boxing Board of Control)
Avoiding the clinch: judicial respect for the rules inherent to sport*
In a recent bout in the High Court, the specificity of sporting disputes once again came to the fore. In Bruce Baker v British Boxing Board of Control [2014] EWHC 2074 (QB), 25 June 2014, Sir David Eady was faced with the (...)
The US District Court for the Southern District of New York denies motion to dismiss the complaint finding insufficient arguments to warrant a dismissal of the claims on per se tying and block-booking on the market for cable television (Cablevision / Viacom International)
Suit Challenging Cable Bundling Survives Motion to Dismiss*
Cable subscribers, tired of being forced to purchase more obscure channels like VH1 Classic and Teen Nick in order to get their nightly Daily Show fix on Comedy Central, should be encouraged by a recent antitrust decision out of the (...)
The Australian Competition Authority files an application seeking to challenge compulsory examination notices being part of an antitrust investigation into allegations of cartel conduct regarding a tender process for an exploration mining licence (Paul and Moses Obeid)
Moses and Paul Obeid issue court challenge to ACCC examination notices*
In response to media inquiries, the ACCC confirms that an application has been filed in the Federal Court of Australia which seeks to challenge compulsory examination notices issued by the ACCC to Paul and Moses Obeid (...)
The US DoJ opens a review of the consent decrees and expects comments on the competitive concerns that arise from the joint licensing in the music industry (ASCAP / BMI)
Department of Justice Opens Review of ASCAP and BMI Consent Decrees*
The Antitrust Division of the Department of Justice announced in June 2014 that it has opened a review of the 73-year-old ASCAP and BMI Consent Decrees. In its press release, the DOJ noted that it is most interested in (...)
The US District Court for the Northern District of California deals with anti-competitive restrictions preventing payments to basketball players for use of their name, image, and likeness (O’Bannon / NCAA)
Three Questions for the Third Week of the O’Bannon v. NCAA Trial*
As the O’Bannon v. NCAA trial enters its third week, commentators are already predicting the fall of the “college sports cartel.” In the case, a group of about 20 current and former college men’s basketball and football (...)