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The Commission has adopted decisions in the Motorola and Samsung cases relating to the enforcement of standard essential patents (SEPs). The two decisions relate to how EU competition rules apply in a situation where a licensor has committed to license its SEPs on fair, reasonable and non-discriminatory (FRAND) terms and then seeks an injunction preventing their use.
The decisions confirm the Commission’s view that the seeking of an injunction in this situation may amount to the abuse of a dominant position when the potential licensee is willing to enter into a licence on FRAND terms.
In the Motorola case, the Commission concluded that a potential licensee is to be considered willing if, in case of dispute, it agrees to a determination of FRAND terms by a Court. As the potential licensee had agreed to such a determination in that case, Motorola was held to have abused its dominant position.
However, it was not fined because this is the first decision of the Commission that has considered these issues. In the Samsung case, the Commission has accepted commitments from Samsung not to seek injunctions for five years in Europe on the basis of SEPs for smartphones and tablets against any potential licensee who agrees to accept a specified licensing framework.
This licensing framework consists of a mandatory negotiation period of up to 12 months and, if the negotiation fails, a determination of FRAND terms by a third party – either by a court or arbitration. The commitments also include the appointment of an independent monitoring trustee.
The European Commission has opened a Phase II merger investigation into the planned acquisition of the Spanish operations of Swiss building materials group Holcim by Cemex.
Both companies are global suppliers of cement and other building materials and the Commission has concerns that the transaction may reduce competition in certain areas of Spain where the two companies' activities overlap.
This article was written by Paul Stone.
For more information please contact Paul on +44 (0)20 7203 5110 or firstname.lastname@example.org