Patent hold-up and the limits of competition law: A Trans-Atlantic perspective

Abstract

Patent hold-up is currently one of the most discussed antitrust topics on both sides of the Atlantic. Competition authorities in the European Union and in the United States have expressed strong concerns about the standard essential patent (SEP) owner's ability to holdup manufacturers and impose unfair and unreasonable licensing conditions. The reach competition law has in addressing cases of patent hold-up remains nonetheless unclear. By analysing the applicability of the antitrust doctrines, the article tries to identify the circumstances in which SEP owners might face a liability under EU competition law and US antitrust law. The analysis shows that the SEP owner's conduct is subject to a different legal evaluation under EU competition law and US antitrust law. The divergences however do not reflect a conflicting perspective of the competition authorities, or to the application of different legal standards, but rather to the differences in the legal provisions on undertakings' unilateral conduct. The analysis also shows that competition law does not provide a definitive solution to the problem of patent hold-up in either system. This suggests that the limitation competition law faces in addressing cases of patent hold-up are not attributable to narrow formulation of the antitrust provision, but rather to the fact that competition law generally does not have the adequate tools to provide a definitive answer to the SEP owners' opportunism.