Browsing by Author "Tan, Xiaowen"

The article discusses FRAND commitment in standard essential patents (SEP) licensing issues. FRAND is an industry solution to solve risks in the process of standardization, which are especially obvious in telecommunication sector due to the huge amount of essential patents. Ever since the appearance of FRAND commitments, there are debates on whether there is a need for anti-trust law to enforce FRAND commitments or not. The article is inspired by argumentations made by representative legal scholars on both sides and to analyse whether there is such a need or not. The contractual nature of FRAND places relevant disputes to be solved primarily among licensing parties and theoretically both Article 101 and Article 102 do not tacitly require FRAND commitments. However, it is necessary for EU competition law to intervene when the SEP licensing agreements and SEP holders’ abusive conducts due to the dominance on the relevant market, are anti-competitive enough to restrict, prevent and distort competition. Therefore, through a thorough examination of concrete problematic conditions in patent thicket, patent ambush, patent hold-up, royalty stacking, seeking injunctions, possible consumer harms, transfer issues and a globalized context, the article is able to conclude that there is a need for anti-trust intervention in FRAND-encumbered SEP licensing issues. The article suggests that here is a need for anti-trust intervention does not mean that competition law offer any special treatment to FRAND-encumbered SEP issues. Instead, competition law functions in a usual way, only when conditions for competition rules are satisfied. Competition authorities upon applying competition rules have to strike a balance between fundamental IPRs and the freedom of competition. Therefore, anti-trust law sits in a neutral standpoint and acts as a safeguard for a competitive market. Also, due to the complexity of standardization issues and divergent FRAND arrangements, cases have to be made on a case-by-case basis.