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European Union

Samsung and the EU

by Charlie Rothbart on 2 February 2012

In my last post I discussed the ongoing litigations between Apple and Samsung, specifically in relation to  standards-essential patents.

It has now been announced that the EU Commission has launched a formal investigation into the 3G licensing practices of Samsung and the alleged contravention of the “irrevocable commitment it made to the European Telecommunications Standards Institute (ETSI).”

The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) requires signatory states to ensure that their national patent legislation obliges patent rights holders to license, on fair, reasonable and non-discriminatory terms (FRAND) their standard-essential patents.

Yet Samsung has asserted a standard-essential 3G patent against Apple, and as a result the Commission is investigating to ascertain whether this is an anti-competitive practice in contravention of Article 102 EU, which prevents the distortion of the common market by an abuse of an entity in a dominant position.

A notable feature of this investigation is that it was not (apparently, or at least publicly) requested by Apple, which is the usual sequence of events in circumstances such as these: the Commission is acting entirely on its own initiative.

The instigation of this investigation demonstrates to the commercial world that the mechanisms in place to protect the consumer and to further the aims of the EU Treaties in maintaining the single Community market really do have teeth. Whether Samsung will be bitten remains to be seen, although it is hard to see how it can be avoided.

As yet, Samsung has not commented on the news, and it remains to be seen if the parties even attempted to negotiate a licence in line with the FRAND obligations.

For the telecommunication industry, lawyers, patent attorneys and policy makers alike, this will be an interesting process to watch, and one which could have significant implications for FRAND, competition law and the plethora of patent litigation that is currently battering the telecommunications market.



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The ultimate weapon for a patent strategy is the injunction. Patents are negative rights which means that at the end of the day a patent holder can stop another company from selling, using, offering for sale or important an infringing product. As IP strategists, we’re usually trying to work hard on assisting companies to obtain a commercial advantage through establishing a strong patent and other intellectual property portfolio and using this portfolio in negotiations with partners, suppliers and competitors to strengthen a company’s competitive advatange. It’s rare that we’ll look at actually blocking a competitor from selling a product – mostly deals are done and a market for a particular product is actually strengthened by having several competitors respecting each other’s intellectual property. From time to time, however, there are times when it may be necessary to seek an injuntion to stop another company from trespassing into protected territory – and that is where the injunction comes into play. Unfortunately, the time taken to get an injunction can be extraordinarily long. Two or three years is not uncommon in many countries – and even in the quicker countries such as the UK or Germany an injunction is rarely granted within a year (and can then be appealed). Emergency injunctions may be possible – but these can be difficult to get except under special circumstances.

So it’s intriguing to read today’s story on the BBC website about LG stopping the import of Sony Playstation 3 consoles into the whole of the European Union (at least for the next ten days). A fascinating example of two large electronics companies exploiting the EU Border Seizure Directive to stop the import of an infringing product. The Directive is usually used to stop counterfeit clothing or software. It’s rare that patents are involved.

Even more fascinating – and useful when considering the single market of the European Union, is that the court in the Netherlands has decided to effectively stop all imports into the European Union, since Rottendam and Amsterdam are the main ports of entry. Of course, it is possible that Sony may try and find a new point of entry into the EU – but they risk other seizure orders in other countries.

The UK Guardian reports that up to 100,000 consoles a week are imported into Europe. At a retail price of between EUR 200 and 500 that’s going to be an impressive amount of lost sales and will not doubt be concentrating minds wonderfully on a dispute that has been going on for some time and is related to patents on the BluRay standard.

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Nanofutures – the future of Nanotechnology IP?

June 16, 2010

It’s been a couple of interesting days in Oviedo, Spain, at the first Nanofutures conference launching the European Technology Integration and Innovation Platform (ETIP) in Nanotechnology. The ETIP is designed to be Europe’s forum for research and commercialisation of nanotech products and the conference was well attended by a number of European Commission officials and […]

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