Injunctive relief in disputes related to standard-essential patents: Time for the CJEU to set fair and reasonable presumptions

On 29 April 2014, the European Commission adopted a decision in two leading competition cases concerning the use of injunctions concerning patents that are necessary in order to implement a standard (so-called “standard-essential patents”, or SEPs). In Motorola,1 the Commission found that Motorola abused its dominant position by seeking the enforcement of injunctions for one of its SEPs against Apple for the implementation of the 2G ETSI standard. Similarly, in Samsung,2 the Commission adopted the commitments offered by Samsung to address the competitive concern arising from its claims for injunctive relief against Apple before German, Italian, Dutch and French courts for its SEPs in the 3G standard. These decisions are the latest development in a series of cases concerning injunctive relief in standard-essential patents, an issue that has been vexing the courts in EU Member States over the last decade: should a preliminary injunction be issued to prevent third parties from using a SEP, when those third parties are willing to take a licensee and simply disagree on the licensing terms proposed by the patent owner? Conversely, does the seeking of an injunction in such circumstances amount to an abuse of dominant position if the patent owner had previously agreed to license the technology on fair, reasonable and non-discriminatory (FRAND) terms? This paper focuses on the peculiar European dimension of this debate, showing that the divergence of rules and standards for granting preliminary injunctions in various Member States encourages forum shopping, with a potentially significant impact on market decisions. Accordingly, it calls for the adoption of an EU stance on the matter in order to avow detrimental effects on the European single market, and it discusses the potential for competition law to fill in the gaps in intellectual property (IP) enforcement through a recent case pending before the Court of Justice of the European Union (CJEU, the Court). Thus, the central issue of this paper is whether EU competition law should dictate a standard for granting injunctions in standard-essential patent disputes and, if so, what the appropriate rule (or standard) should be