Volume 37 (2014) / Issue 1
Standardization has proven to be a source of considerable benefits but for antitrust it can be a field laden with dangers. Recent Article 102 TFEU investigations related to standard-setting focus on the issue of availability of injunctive relief for FRAND-encumbered SEPs and compatibility of such litigation with antitrust rules on unilateral behaviour. The heterogeneity, which characterizes the outcome of these probes across jurisdictions reflects the diversity of opinions found in academic scholarship. This notwithstanding, there is consensus that the concept of the willing licensee is decisive in this regard, while public interest considerations can play an equally crucial role. A German reference for a CJEU preliminary ruling sought guidance regarding the appropriate legal standard for such cases. SEP holders appear creative as to their lines of defence against Commission allegations, but past antitrust practice vis-à-vis dominant pioneers indicates that the avenue of offering legally binding commitments is an option that merits consideration.
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