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Abstract:
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This master thesis deals with the question of the legality of injunction cases in connection to
FRAND-pledge SEPs, as it will have an impact on the opportunity to get an injunction in almost all
of the EU Member States through one decision from the coming Unified Patent Court. The point of
interest is the European Commissions two recent decisions against Motorola and Samsung, where
the Commission held that the initiation of injunction cases in connection with FRAND-pledge SEPs
against licensees, who are willing to enter into license agreements on FRAND terms, is an abuse of
the licensor’s dominant position according to art. 102 TFEU.
The legal analysis has been used to analyse whether the Commissions decision is justified. This has
been done by analysing the five requirements in art. 102 TFEU primary through notices from the
Commission and decisions from the CJEU. The conclusion is, that initiating injunction cases in
connection with SEPs to get a willing licensee excluded from the market or the use of the threat of
such an injunction to get the licensee to agree to terms not considered FRAND, under special
conditions constitutes an abuse of dominance. The special conditions in these cases are that the
patent is a SEP and that the licensor has promised to enter into license agreements on FRANDterms.
In the economic analysis the S-C-P-model has been used together with Evolutionary Economic
Theory to see whether the Commissions decisions are efficient. This have been done by analysing
both a market for de facto standards and one for de jure standards, where injunctions cases on the
basis of SEPs are seen as an abuse of dominance. The conclusion is, that de jure standards creates a
technologic evolution that is much more efficient then on the de facto standard market. But in the
long run the Commissions decisions can create a resistance from the licensors against de jure
standards because the licensors, without the possibility of initiating injunction cases, has lost their
defence against the licensee’s use of reverse hold-ups, which can result in poor quality standards.
In the integrated analysis it is discussed whether FRAND terms should be regarded as a negotiating
process instead of a percentage or an amount. This is a result of Samsung’s commitment to the
Commission, where they refrain from initiating injunction cases if the licensees are willing to enter
into a negotiating process about FRAND and if the parties don't reach a decision, then the terms
will be determined by a court or arbitrator. The result of the analysis is, that it will be much more
efficient to regard FRAND as a negotiating process and it will solve the problem of the licensors
disincentive to be involved in de jure standards, because the licensee will lose their ability to use
reverse hold-ups against the licensor. |
