Abstract
The ability to compete on numerous markets today depends on access to technological standards. When standards are protected by standard essential patents (SEP), a license to use such SEPs will be required. There have been numerous disputes in various jurisdictions over refusals to license SEPs. Most recently, disputes concern access to SEPs by the manufacturers of components. Some SEP holders deny access to their standard essential patents to component manufacturers and prefer to license end product producers. This practice has become a highly contentious issue around the world. In particular, manufacturers of components who are denied access to SEPs claim that such refusals amount to violations of competition rules. The author examines this highly contested practice is an attempt to show when denying access to an SEP license could harm competition.
Highlights
Access to technical standards is very important in numerous industry sectors
Standard implementers are interested primarily in paying as little as possible for the rights to use standard essential patents (SEP)-protected technologies.[10]. They often claim that SEP holders take advantage of the fact that implementers have usually already incurred significant investment costs and that they may no longer switch to third party technologies
Barnett suggest that SEP holders are generally repeat players, thinking about their profits in the long term perspective which includes taking into account the fact that by charging excessive royalties they might be punished by implementers not willing to implement their technologies in the future
Summary
Since standards are often patent protected, such access requires the licensing of patents that are essential to the practice of these standards. Patent holders try to take advantage of the fact that they possess an asset that is indispensable in order to be able to compete on various markets This leads to patent wars between the right holders and manufacturers who implement technologies based on patent protected inventions in their products or those who distribute such products. This paper aims to analyse the role (if any) that competition law could play in ensuring access to standard essential patent licenses for component manufacturers. SEP holders are the gatekeepers to markets where standards are implemented
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