The IEEE-SA patent policy update under the lens of EU competition law

Olia Kanevskaia, Nicolo Zingales

    Research output: Working paperDiscussion paperOther research output

    Abstract

    In 2015, the Institute of Electrical and Electronics Engineers (IEEE) Standardization Association made some controversial changes to its patent policy. The changes include a recommended method of calculation of FRAND royalty rates, and a request to members holding a standard essential patent (SEP) to forego their right to seek an injunction except under limited circumstances. The updated policy was adopted by the IEEE Board of Directors after obtaining a favorable Business Review Letter by the US Department of Justice, which found any potential competitive harm from the policy to be outweighed by potential pro-competitive benefits.

    In this paper, we examine whether the same favorable conclusion would be reached under EU competition analysis. After discussing the role of patent policies of Standard-Setting Organizations (SSO) and the rules and principles applicable to the IEEE’s activities, the paper concludes that standardization agreements based on the updated policy may constitute a violation of article 101 TFEU.
    Original languageEnglish
    Number of pages51
    Publication statusPublished - 2 Dec 2016

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    Kanevskaia, Olia ; Zingales, Nicolo. / The IEEE-SA patent policy update under the lens of EU competition law. 2016.
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    The IEEE-SA patent policy update under the lens of EU competition law. / Kanevskaia, Olia; Zingales, Nicolo.

    2016.

    Research output: Working paperDiscussion paperOther research output

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    AB - In 2015, the Institute of Electrical and Electronics Engineers (IEEE) Standardization Association made some controversial changes to its patent policy. The changes include a recommended method of calculation of FRAND royalty rates, and a request to members holding a standard essential patent (SEP) to forego their right to seek an injunction except under limited circumstances. The updated policy was adopted by the IEEE Board of Directors after obtaining a favorable Business Review Letter by the US Department of Justice, which found any potential competitive harm from the policy to be outweighed by potential pro-competitive benefits. In this paper, we examine whether the same favorable conclusion would be reached under EU competition analysis. After discussing the role of patent policies of Standard-Setting Organizations (SSO) and the rules and principles applicable to the IEEE’s activities, the paper concludes that standardization agreements based on the updated policy may constitute a violation of article 101 TFEU.

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