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Vol 21 No 9 Sept/Oct 2016

Book of the Month

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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The Interface between Competition Law, Patents and Technical Stadards

ISBN13: 9789041154187
Published: November 2014
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £104.00

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The waging of ‘patent wars’ – in which the focal point is the assertion of patents that are essential to the implementation of technical standards (‘essential patents’ or ‘SEPs’) – is among the prominent features of today’s litigation landscape.

In line with this development, competition authorities strive to ensure that the market power obtained by holding SEPs is not abused to the detriment of effective competition. It has indeed been shown that a single SEP is sufficient to block third parties from implementing the standard to which it relates, thus effectively excluding competitors from the market.

This systematic analysis lucidly details the role played by competition law in ensuring that holders of SEPs do not unduly exploit their advantage. The author describes how market power, often amounting to dominance, is obtained by proprietors of SEPs, and then proceeds to set out the framework under which the legality of standardization agreements must be assessed, finally highlighting the role of competition law in preventing patent-related abuse arising after a standard is adopted.

Among the often complex issues clearly explained are the following:

  • ‘fair, reasonable and non-discriminatory terms’ (FRAND);
  • technical standards as drivers of innovation and consumer welfare;
  • conditions governing the standard-setting process;
  • the concepts of ‘patent hold-up’ and ‘patent ambush’;
  • refusal to license;
  • establishing deception ex ante and abuse ex post; and
  • availability of injunctive relief.
In addition to drawing on all relevant EU competition laws and the Commission’s guidelines, the analysis extends when applicable to case law of EU Member States and to pertinent US sources, including literature, case law, and Federal Trade Commission documents.

This book achieves a number of important goals. It explores how Articles 101 and 102 TFEU have been applied, and how it is likely that they will be applied, to prevent, identify, and sanction patent-related abuse in the context of technical standards. It underscores the necessity for a sound legal framework capable of guiding the conduct of patentees and providing an incentive to participate in formal standard-setting activities in order to unlock the economic potential of standardization. It provides guidance to stakeholders, policymakers, and courts on how the current competition law regime applies to technical standards and, where gaps exist, suggests the most likely interpretation of the applicable law. For these reasons and more it will prove to be of great value to lawyers, business persons, and officials working at this crucial nexus of competition law and patent law.

Competition Law, Intellectual Property Law

PART I Prologue.
CHAPTER 1 Introduction.
CHAPTER 2 Recent Trends and Developments: An Overview.
CHAPTER 3 Relevant Legal Issues.
CHAPTER 4 Background.
CHAPTER 5 Structure.

PART II Understanding Technical Standards.
CHAPTER 6 What Is a Technical Standard?.
CHAPTER 7 Types of Technical Standards.

PART III Market Power.
CHAPTER 8 The Link between Market Power and Standardization.

PART IV Adoption of Formal Standards.
CHAPTER 9 Standardization Agreements.
CHAPTER 10 Patent Ambush.

PART V Exercise of Essential Patents.
CHAPTER 11 Non-FRAND License Terms.
CHAPTER 12 Refusals to License.
CHAPTER 13 Essential Patents and Injunctive Relief.

PART VI Concluding Remarks.
CHAPTER 14 Conclusion and Perspective.

Overview of Select IPR Policies.
Table of Cases.