Patent wars 'holding consumers hostage', EU antitrust chief complains

The tech industry needs to set clear rules around the use of FRAND-protected patents in court battles, Joaquín Almunia has said
Written by David Meyer, Contributor on

The tech industry needs to firm up its rules on the use of patents as legal weapons, Europe's antitrust chief Joaquín Almunia has said.


Europe's antitrust chief has said the technology industry needs to firm its rules around the the use of patents as legal weapons. Image credit: Shutterstock

Almunia's department is currently investigating both Samsung and Motorola over their use of standards-essential patents, which are supposed to be protected by 'fair, reasonable and non-discriminatory' (FRAND) terms, in attempts to have Apple and Microsoft products banned.

"One issue in these cases is the use of court injunctions that can infringe the principle of effective access inherent to FRAND," Almunia said in a speech at an antitrust conference on Friday. "We need to find good answers soon, because consumers cannot be held hostage to litigation."

Almunia said competition authorities and the courts should both "intervene to ensure that standard-essential patents are not used to block competition", but he argued that the technology industry had to sort itself out as well.

"Industry too has a role to play in guaranteeing the proper functioning of the standardisation system," he said. "I would therefore strongly encourage industry players to come together in the relevant standard-setting organisations and elaborate clear rules on the basis of these guiding principles to prevent the misuse of standard-essential patents."

In Samsung's case, the company has unsuccessfully tried to assert 3G-related patents, which are FRAND-protected, against Apple in Germany. Motorola has had more luck, winning injunctions against Apple and Microsoft products in the same country.

The Apple injunction briefly saw iPads and iPhones taken off the shelves. The Microsoft injunction theoretically bans Windows 7 and the Xbox 360, although Motorola has not posted the necessary bond in order to try enforcing it. However, Microsoft did move its European distribution operations out of Germany over fears that the ban will be enforced.

The cases were partly retaliatory, as Apple and Microsoft sued first, but the patents used as weapons in those suits were not essential to industry standards and were therefore not FRAND-protected.

FRAND commitments are usually made voluntary (PDF) by standards-setting organisations, but the fact that the relevant patents get included in standards tends to be a result of the patent owner agreeing to the conditions.

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