© tom-schmucker-dreamstime.com General | May 06, 2013
Antitrust: Motorola vs Apple (and the commission)
The European Commission has informed Motorola Mobility of its preliminary view regarding the patent feud between the company and Apple in Germany.
After the court-war between Apple and Motorola in Germany was done, the commission took a closer look at Motorola. What they believe to have found was a misuse of patent licenses. Motorola have been seeking and enforcing an injunction against Apple in Germany, on the basis of its mobile phone standard-essential patents ("SEPs") could amount to an abuse of a dominant position, which is prohibited by EU antitrust rules. While recourse to injunctions is a possible remedy for patent infringements, such conduct may be abusive where SEPs are concerned and the potential licensee is willing to enter into a licence on Fair, Reasonable and Non-Discriminatory (so-called "FRAND") terms. In such a situation, the commission considers that dominant SEP holders should not have recourse to injunctions, which generally involve a prohibition to sell the product infringing the patent, in order to distort licensing negotiations and impose unjustified licensing terms on patent licensees. As this misuse could ultimately harm the consumers. Commission Vice President in charge of competition policy Joaquín Almunia said: "The protection of intellectual property is a cornerstone of innovation and growth. But so is competition. I think that companies should spend their time innovating and competing on the merits of the products they offer – not misusing their intellectual property rights to hold up competitors to the detriment of innovation and consumer choice." The Motorola Mobility SEPs in question relate to the European Telecommunications Standardisation Institute's (ETSI) GPRS standard, part of the GSM standard, which is a key industry standard for mobile and wireless communications. When this standard was adopted in Europe, Motorola Mobility gave a commitment that it would license the patents which it had declared essential to the standard on FRAND terms. Nevertheless, Motorola Mobility sought an injunction against Apple in Germany on the basis of a GPRS SEP and, after the injunction was granted, went on to enforce it, even when Apple had declared that it would be willing to be bound by a determination of the FRAND royalties by the German court.
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