Recent action in the United States signals that improper patent disclosure within a standard setting organisation could have antitrust consequences. Enforcement actions are underway to combat the so-called patent ambushing strategies under US unfair trading rules and allegations of monopolisation or attempted monopolisation. On the other hand the European Union has not yet addressed these issues. This article analyses patent ambushes under EC competition rules. It addresses the issues raised by unilateral patent ambush strategies under Articles 81 and 82 of the EC Treaty. It offers some thoughts on whether EC competition rules could be a viable tool to fight those strategies at EU level as well. It briefly presents a comparison with the situation in the United States and tries to draw some conclusions as to the best way to deal with the patent ambush scenarios, not necessarily through the antitrust avenue. It is argued that EC competition tools might not be useful in attacking patent ambushes as such, other than in exceptional circumstances.
World Competition