Monday, April 29, 2013
Posted by D. Daniel Sokol
Yves Botteman & Jean-François Guillardeau (Steptoe & Johnson) offer Injunctive Relief as an Antitrust Violation or as an Enforcement Tool: An EU Antitrust Perspective.
ABSTRACT: The Apple/Samsung mobile device war has been raging for quite some time. In the European Union, Samsung sought injunctive relief before several Member States' courts to prevent Apple from selling certain versions of its iPhone on the grounds that Apple was violating Samsung's standard essential patents pertaining to the 3G mobile telephony standard. Early last year, the European Commission initiated a formal inquiry to assess whether Samsung had abused its dominant position by breaching its prior commitment to license its SEPs under FRAND terms. The EC has apparently focused its inquiry on the potential (ab)use of injunctive relief rather than on the alleged breach of Samsung's FRAND commitment. In December, it sent formal charges against Samsung. This case, which is not the only one in the pipeline, re-opens the debate on injunctive relief as a source of antitrust concern.
On the other side of the intellectual property/competition fence, over the past decade the EU antitrust watchdog has not used the interim measures mechanism provided for in Article 8 of Regulation 1/2003 even once. The provision empowers the EC to adopt interim measures in order to maintain the status quo pending the final outcome of antitrust infringement proceedings.
This article explores both aspects of injunctive relief, namely the use of injunctions by SEP owners and by the EC. Based on a review of existing case law, it first takes a critical look at the possible theories of harm that the EC may put forward in the context of injunctive relief viewed as a violation of the antitrust rules. It then examines why interim measures have remained an unexploited enforcement tool and whether the EC has alternative tools to enforce the antitrust laws in the context of threats of imminent and irreparable harm to competition.