Fair, Reasonable And Non-­Discriminatory? Lovligheden af anlæggelsen af forbudssager på grundlag af FRAND-­‐ baserede SEPer i EU og de deraf følgende konsekvenser

Nanna Nildstad Hartvigsen

Student thesis: Master thesis


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.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2014
Number of pages103