EU to investigate Samsung's use of FRAND patents against Apple

in General Discussion edited January 2014
An EU antitrust investigation into Samsung's repeated use of FRAND patents as a weapon against Apple in the companies' worldwide patent dispute could force the Korean company to drop most of its claims against the iPhone maker.

A recent court filing by Apple in California reveals that the European Commission has possibly opened an investigation to determine whether Samsung's FRAND (fair, reasonable and non-discriminatory) patent arguments violate EU competition laws, reports FOSS Patents.

"Samsung initiated scattershot litigation over such patents on a worldwide basis, and apparently reached a point at which Europe's competition regulator saw a need to take action," FOSS Patent's Florian Mueller said.

The following is an excerpt from Apple's filing:

Indeed, Samsung's litigation campaign and other conduct related to its Declared-Essential Patents is so egregious that the European Commission recently has opened an investigation to determine whether Samsung's behavior violates EU competition laws.

Apple's filing appears to be the first public record of the investigation to be carried out by the EU's antitrust watchdog, the European Commission's Directorate-General for Competition (DG COMP), though the organization has yet to make any official announcements regarding the matter.

DG COMP is a respected competition enforcer that has imposed fines and other penalties against other large tech players like Microsoft and Intel, and is currently investigating Google's conduct in the region.

"This is the most important development to date related to the world-spanning dispute between these two companies," Mueller writes. The analyst goes on to say that the DG COMP's decision could force Samsung to withdraw most of its claims against Apple citing possible heavy fines should the commission find the Korean company at fault.

The EU is of main concern to Samsung's assertions, as the FRAND patents related to the 3G cellular standard that is used around the world was developed by the European Telecommunications Standards Institute (ETSI), which is governed by French laws.

"Some courts, such as in Australia and the Netherlands, have said that Samsung's FRAND licensing commitments must be construed under French law since that's the governing law of ETSI's 3G standard-setting agreement." Mueller said. "As far as applicable antitrust rules are concerned, French law is effectively EU law."

Mueller notes that Samsung was one of many notifying telecoms and tech companies when the European Commission granted antitrust clearance to a set of 3G-related patent license agreements nine years ago.

"Antitrust regulators don't take it lightly if companies obtain approval of certain deal terms and years later behave anticompetitively with respect to the very same standard," Mueller writes.

Samsung will now have to be careful in its use of 3G patent claims against Apple as it can further complicate the DG COMP's antitrust investigation. The commission has the authority to force Samsung to license its patents to Apple, and that the investigation will make any injunctions based on 3G patents even less likely worldwide.
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