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).

Standard-Essential Patent (SEP)

Standards frequently make reference to technologies that are protected by patents. A patent that protects technology essential to a standard is called a standard-essential patent. It is impossible to manufacture standard-compliant products such as smartphones or tablets without using technologies covered by one or more SEPs. SEPs are different from patents that are not essential to a standard (non-SEPs), such as design patents, for example, which protect the design features of an invention. This is because, generally, companies can invent alternative solutions that do not infringe a non-SEP (whereas they cannot design around a SEP). For example the "slide to unlock" technology is covered by a non-SEP. Most smartphone manufacturers were able to develop different technologies for unlocking a smartphone screen which do not infringe the "slide to unlock" patent. This would not have been possible in the case of a SEP. There are thousands of SEPs reading on technologies implemented in various standards set by the SSOs. For example, the total number of SEPs declared to ETSI is 155,4748. More than 23,500 patents have been declared essential to the GSM and the "3G"or UMTS standards developed by ETSI9. These standards need to be implemented in virtually all smartphones and tablets sold in Europe. Given their essentiality to a standard, obviously SEPs are important for companies. They are also litigated more often than non-SEPs. (...) In the telecommunication sector, there was a noticeable surge in high profile patent litigation involving many important industry players such as Apple, Motorola, Samsung, Google and Microsoft. But as shown in the table below, litigation on the basis of SEPs also happens in many other industries. © European Commission

On this topic see the special issue "Standard-Essential Patents and Competition Law: An overview of EU and national case law"

Related EU and national case law

Peter L’Ecluse The EU Court of Justice rules that pay-for-delay patent settlements may restrict competition ‘by object’ (Generics - UK)

30 January 2020

On 30 January 2020, the Court of Justice of the European Union (the “ECJ”) handed down its judgment in Case C-307/18, Generics (UK) and Others. This case marks the first time the ECJ has ruled on patent settlement agree- ments between originator pharmaceutical companies and generic producers. (...)

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.

Christian Dölling, Henrik Holzapfel The Munich District Court issues an anti-suit injunction in patent litigation (Nokia)

11 July 2019

On July 11 2019, the Munich I District Court (Landgericht) issued an anti-suit injunction in patent litigation, preventing an automotive company from further pursuing proceedings in the United States. The Munich decision might become a landmark case because German courts have historically not (...)

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

6 June 2019

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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 (...)

Catherine Prieto Standing up for Convergence and Relevance in Antitrust, Frédéric Jenny Liber Amicorum

May 2019

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John Handoll India: Remedies in merger cases

February 2019

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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 (...)

Walid Chaiehloudj Les accords de report d’entrée

9 January 2019

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Nicolas Charbit, Sonia Ahmad Frédéric Jenny Liber Amicorum

28 December 2018

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Emily Luken, Jay Jurata Standard-Essential Patents and Competition Law: An Overview of EU and national case law

22 November 2018

The extent to which competition law has shaped developments and understandings of standard-essential patents (SEPs) has increased substantially over the past fifteen years. When e-Competitions began publishing, there were very few cases and agency enforcement actions on the topic. The “Smartphone Wars” that played out in the early 2010s altered the landscape significantly and brought about numerous decisions applying competition law and competition law principles to SEPs in Europe, the United States, and Asia. Today, the exact contours of how competition law interacts with SEPs is one of the most hotly debated topics in legal literature. Indeed, a small but vocal minority question whether the issues that arise with respect to SEPs even trigger competition law at all.

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, 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, (...)

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 (...)

Perrine Perez Les accords de report d’entrée. Contribution à l’étude de la relation du droit de la concurrence et du droit des brevets, Walid CHAIEHLOUDJ

September 2018

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

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European Commission The EU Commission clears a merger subject to remedies in the market of semiconductors (Qualcomm / NXP)

18 January 2018

Mergers: Commission approves Qualcomm’s acquisition of NXP, subject to conditions* The European Commission has approved under the EU Merger Regulation the proposed acquisition of NXP, based in the Netherlands, by Qualcomm of the US. The approval is conditional on full compliance with (...)

Porter Elliott The EU Commission conditionally clears a merger in the market of semiconductors (Qualcomm / NXP)

18 January 2018

On 18 January 2018, the European Commission (the “Commission”) conditionally approved the acquisition of NXP by Qualcomm. Both companies are important producers of chipsets used for smartphones and other applications. During an in-depth merger review, the Commission identified three competition (...)

Ianis Girgenson Standard essential patents: The European Commission finds that a merger between two major players in the semiconductor industry raises conglomerate concerns (Qualcomm / NXP Semiconductors)

18 January 2018

On 18 January 2018, the European Commission approved the acquisition of Dutch company NXP Semiconductors by U.S. group Qualcomm. Both parties were active in the supply of semiconductors. The Commission concluded that the transaction raised conglomerate concerns due to the parties’ strong (...)

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 (...)

Charles Bankes, Michael Burdon The EU Commission publishes a fact sheet on IP rights enforcement and a communication setting out the EU’s approach to standard essential patents

29 November 2017

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 enormous (...)

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 (...)

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 (...)

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 (...)

Stefan M. Meisner The US Supreme Court holds that patentees extinguishes patents rights on a product once it makes a sale of it (Impression Products / Lexmark International)

30 May 2017

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 (...)

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 (...)

Nicole Daniel The California Southern District Court receives a claim from a smartphone manufacturer against one of its suppliers over allegedly abusive wireless patents (Apple / Qualcomm)

20 January 2017

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. (...)

Nicole Daniel The Northern District Court of California Judge’s expresses possible abuses in asserting legal privilege (Qualcomm / FTC)

17 January 2017

U.S. Qualcomm Case Update: Privilege Assertions* On 22 March 2018, in a court hearing in the Qualcomm case, Judge Koh expressed her concern over possible abuses in asserting legal privilege over certain documents. In January 2017, the U.S. FTC sued Qualcomm, alleging that the company (...)

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. (...)

Christopher B. Hockett, Jesse Solomon China: An overview of intellectual property rights guidelines and global considerations for antitrust practitioners

November 2016

Anti-Monopoly Commission (“AMC”) has charged four Chinese state agencies with developing guidelines on when IPR-related conduct violates China’s Anti-Monopoly Law. So far, two of those agencies—the NDRC, which oversees price-related conduct, and the SAIC, which oversees non-price-related (...)

Antonin Pitras Competition Law as Regulation

September 2016

To what extent should competition agencies act as market regulators? Competition Law as Regulation provides numerous insights from competition scholars on new trends at the interface of competition law and sector-specific regulation. By relying on the experiences of a considerable number of (...)

Jacques Buhart The EU Court of Justice rules that royalties for unpatented technology are not necessarily anticompetitive (Genentech)

7 July 2016

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 (...)

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 (...)

Kristina Nordlander, Patrick Harrison EU / US Patent Settlements: An overview of leading cases

21 January 2016

1. Introduction 1.1 In October 2013, the authors penned a foreword to a special edition of Concurrences on patent settlement agreements. 1.2 A lot has happened since that foreword was published. The European Commission (“Commission”) has issued – and published – infringement decisions in a (...)

Cordula Tellmann-Schumacher The Düsseldorf Regional Court orders injunctive relief for infringement of standard-essential patents in the first German judgments after CJEU decision on FRAND (SISVEL / Haier)

3 November 2015

On 3 November 2015, the Düsseldorf Regional Court has issued judgments against Haier Deutschland GmbH und die Haier Europe Trading SRL, entities of Chinese Qingdao Haier Group. The Court ordered them to cease and desist from and render account on past infringements as well as determined Haier’s (...)

Fiona M. Scott-Morton, Guillaume Loriot, Hanno F. Kaiser, Sven Voelcker Challenges for Antitrust Enforcement in the Technology Sector

14 October 2015

Law & Economics Workshop organized by Concurrences Review in partnership with Latham & Watkins.

Alvaro Ramos, Gregor Langus, Miguel Rato, Nicholas Banasevic SEPs & FRAND after the ECJ Huawei/ZTE ruling

23 September 2015

Law & Economics Workshop organized by Concurrences Review in partnership with Shearman & Sterling and Compass Lexecon.

Igor Nikolic The UK Patents Courts considers Articles 101 and 102 TFEU in FRAND dispute relating to standard essential patents (Unwired Planet / Huawei / Samsung / Google / Ericsson)

21 July 2015

Give us a FRAND: Unwired Planet v Huawei & Samsung*On 29 January, Mr Justice Birss gave judgment in the second UK patent trial between Unwired Planet, Samsung and Huawei, holding that two of Unwired Planet’s patents are invalid for obviousness. The case concerns patents that were declared (...)

Tom Foster The UK Court of Appeal allows appeal from UK Patents Court decision on competition law arguments in a FRAND dispute in relation to standard essential patents (Unwired Planet / Huawei / Samsung / Ericsson)

21 July 2015

Unwired Planet v Huawei & Samsung: Samsung Given Permission To Appeal Strike Out*Summary Unwired Planet asserts that Samsung and Huawei have infringed several ’standard essential patents’ (SEPs) relevant to mobile telecommunications standards. Samsung and Huawei have defended the claims based (...)

Seth D. Greenstein The EU Court of Justice holds standard-essential patent owner can abuse its position by seeking to enjoin infringement (Huawei / ZTE)

16 July 2015

European Court Of Justice Holds Standard-Essential Patent Owner Can Abuse Its Position By Seeking To Enjoin Infringement* The European Court of Justice ruled today that the owner of a standard-essential patent abuses its dominant position when it seeks an injunction in an action for patent (...)

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)