This Glossary matches the list of keywords used by Concurrences search engine. Each keyword is automatically updated by the most recent EU and national case laws from the e-Competitions Bulletin and Concurrences Review. The definitions are excerpt from DG COMP’s Glossary of terms used in EU competition policy (© European Union, 2002) and the OECD’s Glossary of industrial organisation economics and competition law (© OECD, 1993).

FRAND

Fair, Reasonable and Non-Discriminatory (FRAND or FRAND licensing). For more see Fair, Reasonable and Non-Discriminatory (FRAND) Licensing Terms. Research Analysis of a Controversial Concept, 2015

See also Compulsory license and Licensing

Related EU and national case law

Peter L’Ecluse 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)

3 February 2020

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 Standard (...)

European Commission The EU Commission clears a merger subject to remedies in the market of telecommunications and TV broadcasting (Telia / Bonnier Broadcasting)

12 November 2019

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 (...)

Porter Elliott The EU Commission clears subject to behavioural commitments a merger in the telecommunications sector (Telia / Bonnier Broadcasting)

12 November 2019

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 television (...)

François Brunet, Céline Verney Commitments: The European Commission clears, after an in-depth investigation and subject to commitments, a merger between two Swedish Telecommunications operators active in several European Union Member States (Telia / Bonnier)

12 November 2019

Le 12 novembre 2019, la Commission européenne a autorisé l’acquisition de l’opérateur Bonnier Broadcasting par le groupe suédois de télécommunications Telia. Les deux opérateurs sont présents en Suède, en Finlande, au Danemark et en Norvège. Tandis que Telia fournit des services de télécommunications fixes (...)

Rupprecht Podszun Intellectual property and competition law: An overview of EU and national case law

19 September 2019

About ten years ago, “IP and competition law” was the hottest ticket in antitrust town. The relevant cases decided in those days had it all: Well-known companies, very sophisticated legal issues, and authorities that were willing to intervene vigorously in the field of intellectual property law.

Zhan Hao, Song Ying The Supreme People’s Court of China clears its stance on arbitration clauses and states that the jurisdiction of Chinese courts over antitrust civil disputes cannot be excluded

21 August 2019

CHINA’S SUPREME COURT ENUNCIATED THE NON-ARBITRABILITY OF ANTITRUST CIVIL DISPUTES* For a few years, the topic of whether antitrust civil disputes could be arbitrable had been hotly debated in China. There were few precedents in connection with this issue for people to better understand what (...)

OECD The OECD holds a roundtable on the licensing of IP rights and competition law

6 June 2019

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 (...)

Peter L’Ecluse The Hague Court of Appeal delivers its judgment on an alleged infringement of patent essential to the Universal Mobile Telecommunications System standard (Philips / ASUS)

7 May 2019

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 (...)

Peter L’Ecluse The Paris Court of Appeal delivers the first judgement on FRAND terms and applies the French legislation implementing the trade secrets directive (Conversant / LG)

16 April 2019

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 (...)

John Handoll India: Remedies in merger cases

February 2019

No notified combination has to date been prohibited by the Competition Commission of India (CCI). However, the clearance of some 30 combinations has been subject to the parties implementing structural or non-structural (behavioural) remedies. This article outlines the sometimes innovative (...)

Anne Perrot, Damien Geradin, Paul Seabright Standards and competition (Nasse Seminar - Paris, 5th of novembre 2009)

February 2010

During the Seminar organized the 5th of november of 2009, Damien Geradin and Paul Seabright talked about standards and competition. The seminar was animed by Anne Perrot, vice-president of the Competition Authority. Créé à la fin des années 1980 au sein de la Direction de la Prévision, le (...)

Peter L’Ecluse The UK Court of Appeal confirms jurisdiction over a standard essential patents dispute (Huawei / ZTE)

30 January 2019

On 30 January 2019, the UK Court of Appeal issued a judgment in the case pitting Conversant Wireless against two telecommunications companies, Huawei and ZTE. In this case, Conversant was seeking injunctive relief and damages against both companies in relation to the alleged breaches of its (...)

Man Mohan Sharma The Indian Competition Authority re-imposes fines on a professional association for limiting supply with its certification requirements in the pharmaceutical industry (Vedanta Bio Sciences Vadodara / Chemists and Druggists Association of Baroda)

15 January 2019

CCI Imposes Penalty on Chemists and Druggists Association of Baroda* CCI, by way of order dated 15.01.2019 has found the Chemists and Druggists Association of Baroda (‘CDAB’) to be in contravention of the Act by indulging in the activity of limiting and controlling the supply of drugs and (...)

Man Mohan Sharma 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)

5 December 2018

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). (...)

Hanhong Wu, Wei Tan Introduction (10 years of the Anti-Monopoly Law in China - Beijing, 14 July 2018)

November 2018

The article below introduces 9 articles related to the conference "10 years of Anti-Monopoly Law in China" held in Beijing on July 14, 2018 and published in this issue of Concurrences N°4-2018. Introduction Wei Tan Managing Director, Mingde Economic Research Inc., Washington, D.C Hanhong Wu (...)

Shan Jiao, Wei Tan, Ying Qin Merger control (10 years of the Anti-Monopoly Law in China - Beijing, 14 July 2018)

November 2018

These papers review the use of FRAND commitment as merger remedy and the risks of Un-notified Concentrations in China. The paper looks at the economic meaning of FRAND price after the merger, the potential abuse of FRAND commitment and the implication of these remedies. By the end of this (...)

Guanbin Xie, Li Zhu, Xuting Wu IP and antitrust litigation (10 years of the Anti-Monopoly Law in China - Beijing, 14 July 2018)

November 2018

In April 2017, Beijing High Court issued its Guidelines on the Ruling of Patent Infringements and one year later, Guangdong High Court issued its Guidelines for the Trial of SEP Disputes (for trial implementation) on 26 April 2018. Both of these Guidelines tried to resolve the SEP-related (...)

Aymeric de Moncuit Connecting competition law standards to the Internet of things

November 2018

The advent of the Internet of Things will entail a new Internet revolution and bring about profound changes that will rival the first wave of Internet innovation. This paper explores the competition law implications raised by this upcoming revolution. Starting by discussing the merits of open (...)

Stefan M. Meisner, Anthony S. Ferrara, Lisa Peterson Rumin The Texas District Court declares that a licensing offer based on end device is compliant with FRAND commitments (HTC / Ericsson)

7 November 2018

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 whether (...)

Stefan M. Meisner, Lisa Peterson Rumin The U.S. 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)

6 November 2018

FTC Secures Partial Victory Requiring SEP Holder to License to All Comers in Antitrust Case* Summary Recently, a federal district court in California granted partial summary judgment for the US Federal Trade Commission (FTC) in an important intellectual property and antitrust case involving (...)

Natasha Nayak The UK Court of Appeal upholds a decision qualifying an essential patent offer to be FRAND (Huawei / Unwired Planet International)

23 October 2018

UK COURT OF APPEAL UPHOLDS FRAND INJUNCTION* Last week, the UK Court of Appeal upheld the findings of the High Court in an important case regarding standard essential patents (SEPs). Of particular significance, the Court of Appeal upheld the finding that the defendant, an implementer of SEPs, (...)

Emmanuel Combe Petit manuel (irrévérencieux) d’économie

8 October 2018

Ce petit manuel irrévérencieux d’économie est une balade qui emprunte des chemins de traverse et prend le temps de s’arrêter sur un fait d’actualité, parfois d’apparence anodine, pour le décrypter avec les lunettes de l’économiste. Un regard souvent décalé, qui démasque les vérités d’évidence et invite à (...)

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

September 2018

Although seeking an injunction might be a legitimate tool, threatening a willing licensee with an injunction to extract excessive royalties can be abusive under competition law. In these cases, patentees abuse their market power by using injunctive remedies to avoid their FRAND commitment. Even (...)

Man Mohan Sharma 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)

14 June 2018

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 (...)

Fayrouze Masmi-Dazi Dominance in the telecom sector

17 May 2018

Over the last three years, there have been three landmark cases of dominance in the telecom sector in the EU targeting practices undertaken by telecom equipment suppliers: the Huawei/ZTE CJEU judgment in 2015, plus the Intel and Qualcomm decisions sanctioning exclusionary rebates. Given the significance of such cases both in terms of substantial assessment and political stance, these will be the focus of the present contribution.

Gabriella Muscolo, Giovanni Pitruzzella Unfair prices: A few remarks on competition policy and antitrust analysis

February 2018

Recent antitrust intervention against unfair prices in the pharmaceutical industry by the Italian and UK competition authorities, as well as the answer of the European Court of Justice to preliminary questions from the Latvian Supreme Court, have breathed new life into the longstanding debate (...)

Walid Chaiehloudj United States: The US District Court of Central District of California rules on fixation of FRAND rate (TCL Communications / Ericsson)

21 December 2017

Depuis de nombreuses années, les juridictions et les autorités de concurrence du monde entier sont sensibilisées au problème du hold-up et mènent des actions antitrust contre ces stratégies. La question principale a pendant longtemps été de savoir si la mise en œuvre d’actions en contrefaçon à (...)

Fei Deng, Mario Lopez The U.S. District Court of California uses an economic approach to determine frand loyalty rates (TCL / Ericsson)

21 December 2017

On November 8, 2017, Judge James Selna of the US District Court in the Central District of California issued a decision (published later on December 21st) in TCL v. Ericsson determining fair, reasonable, and non-discriminatory (FRAND) royalty rates for Ericsson’s standard essential patent (SEP) (...)

Maurits Dolmans, David R. Little, David Herrington The U.S. District Court sets out FRAND rates for licensing standard essential patents for 2G, 3G and 4G wireless communications (TCL / Ericsson)

21 December 2017

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 concerning worldwide licenses to 2G, 3G, and 4G standard essential patents (SEPs) owned by Ericsson. The court determined that none of (...)

Enzo Marasà 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)

20 December 2017

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 market for (...)

Tim Kasten The EU Commission publishes a communication on Standard Essential Patents

29 November 2017

On 29 November 2017, the European Commission published a communication titled “Setting out the EU approach to Standard Essential Patents” (the “Communication”) in which it seeks to offer guidance and recommendations in relation to the licensing, valuation and enforcement of Standard Essential (...)

Maurits Dolmans, Wanjie Lin Fairness and competition law: A fairness paradox

November 2017

“Fairness” in EU competition law is hotly debated. This article explores the concept from a sociological, philosophical, and legal perspective, and suggests there is a fairness paradox: while competition law should reflect the values of fairness, if fairness were actually employed in substantive (...)

Catherine Prieto Antitrust Issues in Intellectual Property Law, Bradford P. LYERLA

November 2017

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Henry de la Barre, Philipp Werner, Yvan N. Desmedt The EU General Court issues a ruling on mandatory access and interoperability in the software industry (Contact Software)

14 October 2017

The European General Court’s ("GC") decision relates to a complaint filed with the European Commission ("EC") by Contact Software, a German software supplier of Product Data Management ("PDM"). Contact Software alleged an abuse of dominance by Dassault Systèmes and Parametric Technology Corp., as (...)

Jorge Padilla A research report finds that setting open technology standards through voluntary participation in Standards Development Organisations results in innovative and competitive industries

24 September 2017

Economic Impact of Technology Standards: The past and the road ahead - Key Findings* Our research has shown that industries based on open technology standards, agreed through voluntary participation in industry bodies, have an impressive record of innovation. We looked in particular at the (...)

Jeremy Martinez Legal licence: The French Constitutional Council approves a legal provision authorizing internet radio services to use phonograms for commercial purpose without its interprets’ and producers’ consent (Société civile des producteurs phonographiques)

4 August 2017

La décision à commenter s’inscrit dans la délicate question de la protection des droits d’auteurs au regard des nouvelles modalités de diffusion numérique. Après l’adoption d’un arrêté édicté par le Ministre de la Culture fixant la composition d’une commission chargée de fixer les modalités de rémunération (...)

Emily Luken, Jay Jurata, Matthew G. Rose The UK High Court of Justice issues an injunction prohibiting an undertaking from selling wireless telecommunications products in Britain due to its failure to enter into a worldwide patent license (Unwired Planet / Huawei)

7 June 2017

“Between a Rock and a Hard Place”: Unwired Planet v. Huawei and the Dangerous Implications of Worldwide FRAND Licenses I. Introduction The United Kingdom High Court of Justice (Patents) recently issued an injunction prohibiting Huawei from selling wireless telecommunications products in (...)

European Competition Network Brief The Danish Competition Authority finds two manufacturers and two associations guilty of forming a cartel in the market for roofing membranes (Icopal / NWP / DTB / TOR)

31 May 2017

Illegal agreement regarding the Danish market for roofing membranes EU* The Danish Competition Council has decided that the only two Danish manufacturers of roofing membranes; Icopal Danmark ApS (“Icopal”) and Nordic Waterproofing A/S (“NWP”), as well as the two associations Danske (...)

Hanns Ullrich FRAND Access to open standards and the patent exclusivity: Restating the principles

May 2017

When technical standards are to be defined pursuant to the claims of a patent and, therefore, the use of the standard will necessarily infringe that standard-essential patent (SEP), the proprietor may commit to granting all users a license at fair, reasonable and non-discriminatory (FRAND) (...)

Peter L’Ecluse The EU Commission publishes roadmap on Standard Essential Patents

10 April 2017

On 10 April 2017, the European Commission published its roadmap on “Standard Essential Patents for a European digitalised economy” (the “Roadmap”) with the aim of supporting the development of the 5G mobile communications standard (“5G”) and the Internet of Things (“IoT”) universe. A standard (...)

Peter L’Ecluse The UK High Court delivers judgment in FRAND royalty case (Unwired Planet / Huawei)

5 April 2017

On 5 April 2017, Justice Birss of the English High Court of Justice issued a judgment in a license dispute involving Standard Essential Patents (“SEPs”) opposing Unwired Planet, a US based patent assertion entity, against Huawei, a Chinese telecommunications company. Unwired Planet sued Huawei (...)

Tim Kasten The Italian Competition Authority accepts commitments from an Italian collecting society in abuse of dominance investigation (Nuovoimaie)

22 March 2017

On 22 March 2017, the Italian Competition Authority (“ICA”) accepted commitments from the copyright-collecting society NUOVOIMAIE (“NI”) aimed at addressing ICA’s concerns that NI had abused its dominant position on the Italian market for management and intermediation services in the audio-visual (...)

Will Diaz, Stefan M. Meisner The US FTC and DoJ issue antitrust guidelines for the licensing of intellectual property

12 January 2017

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. (...)

OECD The OECD holds a roundtable on competition and innovation in land transport

28 November 2016

Executive Summary, by the Secretariat* Considering the discussion at the roundtable held by Working Party No.2 on 28 November 2016, the delegates’ submissions, the panellists’ presentations and the Secretariat’s background paper, several points are noted: 1. As a result of regulatory and (...)

Porter Elliott The UK Competition Authority orders structural remedies to clear a merger on the market of energy trading services (Intercontinental Exchange / Trayport)

17 October 2016

On 17 October 2016, the UK Competition and Markets Authority (“CMA”) ordered Intercontinental Exchange Inc. (“ICE”) to sell Trayport to a new owner, to be approved by the CMA, in order to preserve competition on the market for the supply of certain energy trading services. ICE is the largest (...)

David Knight, Nick Pimlott The UK Patents Court defers hearing on competition law issues in a patent litigation until infringement of patents is established (Illumina / Premiatha)

1 July 2016

Illumina, Inc v Premiatha Health PLC [2016] EWHC 1726 (Pat)*In July 2015 the Court of Justice of the European Union (CJEU) handed down its judgment in Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH (Case C-170/13). In that Judgment the CJEU ruled that in proceedings for an (...)

James Bourke, Jon Turner, Laura Elizabeth John, Meredith Pickford The UK Court of Appeal overturns a UK Patents Court decision and allows competition law arguments in a FRAND dispute in relation to Standard Essential Patents (Unwired Planet / Huawei / Samsung / Ericsson)

27 May 2016

Court of Appeal reinstates Samsung’s case on non-discrimination and FRAND*On Friday 27 May, the Court of Appeal handed down an important judgment on the interplay between competition law and the licensing of essential patents.This is part of a landmark patent infringement case where Unwired (...)

Eibhlin Vardy The UK Patents Court declines application to transfer dispute on FRAND to UK Competition Appeals Tribunal (Unwired Planet / Huawei / Samsung)

29 April 2016

UK Patents Court refuses to transfer Unwired Planet competition claims to CAT*Background and status of proceedingsIn summary, Unwired Planet is asserting a number of patents against Huawei and Samsung, both of whom sell mobile devices and infrastructure equipment. The litigation has been (...)

European Commission The EU Commission invites interested third parties to comment the commitments proposed in the credit default swaps case (ISDA / Markit)

28 April 2016

Antitrust: Commission seeks feedback on commitments by ISDA and Markit on credit default swaps* The European Commission is inviting comments from interested parties on commitments offered separately by ISDA and by Markit to address competition concerns relating to the licensing of data and (...)

Cristina Caffarra, Thomas Kramler e-Commerce Inquiry: Removing the last Public and Private Barriers

20 April 2016

Conference organized by Concurrences Review in partnership with Charles River Associates (CRA) and Shearman & Sterling.

Glossary

A

Absolute territorial protection • Abuse of dominant position • Abuse of economic dependence • Access to essential facility • Access to information • Access to the file • Agency agreement • Agent • Agreement (notion) • Amicus curiae • Ancillary restraints • Annulment • Anticompetitive objet or effect • Anticompetitive practices • Applicable law • Arbitration

B

Barriers to entry • Bid rigging • Block exemption (Regulation) • Boycott • Brand competition • Burden of proof • Business secrets • Buyer power

C

Cartel • Clearance phase I (merger) • Clearance phase II (merger) • Collecting society • Collective dominance • Collective redress (class action) • Competence • Competition policy • Competition policy • Complaint • Compliance programme • Compulsory license • Concerted practices • Concession • Concurrent jurisdiction • Consumers protection • Consumers’ associations • Control (change) • Control (notion) • Cooperation Agreement • Cooperation between competition authorities • Coordinated effects • Copyright • Corporate group • Corruption • Criminal sanctions • Cross subsidisation

D

Damages • Dawn raids • De minimis notice • Direct effect • Discriminatory practices • Distribution agreement • Dominance (notion)

E

ECHR • Economic analysis • Economic efficiency • Effect on trade between Member States • Effective judicial protection • Environmental protection • Essential facility • European Competition Network (ECN) • Excess prices • Exchanges of information • Exclusive distribution • Exclusive purchasing agreement • Exclusive right (Art. 106 TFEU) • Exclusivity clause • Exhaustion • Extra-territoriality

F

Failing firm defence • Fine • Fine mitigating • Foreign direct investment (FDI) • Franchising • FRAND

G

Geographic market • Group purchasing organization • Gun jumping

H

Hard core restrictions • Horizontal agreement

I

Independence and impartiality • Individual exemption • Institutions • Intellectual property right • Interim measures • International competition network (ICN) • Investigations / inquiries • Investigations/ inquiries

J

Joint control • Joint venture • Judicial review

L

Legal privilege • Leniency • Licensing • Limitation period • Low prices

M

Mandatary (distribution) • Margin squeeze • Market economy investor • Market power • Market share • Media pluralism • Merger (notion) • Merger (prohibition) • Merger (withdrawal) • Minority shareholdings • Misinformation

N

Ne bis in idem • Non-competition clause • Notification • Nullity

O

Oligopoly

P

Parallel imports (parallel trade) • Passing-on • Pay-for-delay • Periodic penalty payment • Politique de concurrence • Predatory pricing • Preliminary ruling (Art. 267 TFUE) • Price discrimination • Price-fixing agreement • Prices • Principle of effectiveness • Principle of equal treatment • Principle of equivalence • Principle of proportionnality • Privacy • Private enforcement • Privatization • Procedural autonomy • Professional association • Public procurement • Public undertaking

R

Referral (merger) • Refusal to deal • Regulated prices • Relevant market • Remedies (antitrust) • Request for information • Resale price maintenance (RPM) • Resale-below-cost • Right against self-incrimination • Rights of defence • Rule of reason

S

Sector inquiry • Selective distribution • Services of general economic interest • Single branding • Sole control • Spill-over effects • Standard-Essential Patent (SEP) • State action defense • State aid (compatibility) • State aid (existing aid) • State aid (notification) • State aid (notion) • State aid (recovery) • State aid (tax exemption) • State aid (tax ruling) • State aid (unlawful aid) • State measure • Sudden break of established business relationships

T

Test SIEC (merger) • Test SLC (merger) • Transfer of technology • Transfer pricing • Trustee (mergers) • Turnover threshold (merger) • Tying or tied selling

U

Undertaking (notion) • Unfair competition • Universal service

V

Vertical agreement • Vertical restraints (or restrictions)