ICC Reply to the European Commission’s Public Consultation on Patents and Standards

In its comments on the Commission’s proposed revised Technology Transfer Block Exemption Regulation , ICC affirmed that it “supports a competition policy that fosters innovation and robust intellectual property protection.”

ICC identifies this goal as its main concern in responding to the Commission’s consultation about patents and standards, and addresses below the questions seen as most important in this respect.

ICC applauds the policy adopted by the European Commission: “SEP-based injunctions should be available when there is an unwilling licensee.” Motorola/Samsung Memo, 29 April 2014. It appears that the Advocate General agreed with this policy in his opinion. Huawei v. ZTE, paragraph 50. EU competition law formally recognizes that the possibility of an injunction may be needed to balance the negotiation power between a FRAND-compliant SEP-holder and an “unwilling” – sometimes a more apt term is “bullying” – licensee. Without this possibility, efforts to obtain compensation are likely to be futile and the incentive for innovation will wither away.

With the adoption by the EU of a balanced policy toward injunctions under competition law, injunctions should no longer be at risk as the remedy which offers SEP holders ultimate assurance of receiving fair compensation. However, ICC believes ongoing efforts by some unwilling licensees to make this remedy toothless must be closely monitored and rejected by the competition authorities and the courts.

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