We generally focus on U.S.-specific standard-essential patent issues here at the Essential Patent Blog, but often there are some international developments that are worth noting. Today brings us one of those, as the European Commission announced that it has sent a Statement of Objections to Motorola Mobility as part of its investigation into Motorola’s potential misuse of mobile phone-related standard-essential patents.
The EC states that at this point in the investigation, its preliminary view is that Motorola’s seeking and enforcing of an injunction against Apple in Germany on the basis of a cellular standard-essential patent amounted to an “abuse of a dominant position” in violation of the European Union antitrust laws:
Today’s Statement of Objections sets out the Commission’s preliminary view that under the specific circumstances of this case – a previous commitment to license SEPs on FRAND terms and the agreement of Apple to accept a binding determination of the terms of a FRAND licence for SEPs by a third party – recourse to injunctions harms competition. The Commission is concerned that the threat of injunctions can distort licensing negotiations and lead to licensing terms that the licensee of the SEP would not have accepted absent this threat. This would lead to less consumer choice.
The EC is careful to note two things — first, that it takes no position on the availability of injunctive relief for SEP holders against unwilling licenses; and second, that the sending of a Statement of Objections is a formal step and “does not prejudge the final outcome of the investigation.” However, it’s clear that the EC has taken a dim view of FRAND SEP holders seeking injunctions against willing (or even potentially-willing) licensees.
For those unfamiliar with the EC’s investigation of Motorola or EC antitrust investigations in general, the Commission provides a handy Q&A memo/fact sheet that answers a number of questions you may have. It’s definitely worth taking a look at — and it shows that the EC’s concerns are very similar to those expressed by the FTC in its own investigation of Motorola’s SEP licensing and assertion practices.