This project explored how patent pledges made outside of standard-setting organisations (SSOs) would be treated under EU Competition Law.
Patent pledges are voluntary commitments made by patent holders to limit the enforcement of their patents and are mostly found in the ICT sector. FRAND commitments belong to that categorie but one can also find more original pledges such as the Tesla pledge of 2014. This research concentrated on the latter. Patent pledges vary in features and objectives and present some originalities compared to more typical licensing arrangements and classic patent pools. Two categories of pledges have been identified by Contreras in his seminal work on pledges: coordinated and unilateral pledges. While patent pledges are much discussed in the US, it is much less the case in Europe. Just as American scholars have investigated the interaction between patent pledges and Antitrust law, this research addressed, in a similar manner, the interplay between patent pledges and EU competition law.
The first part of this project concentrated on both coordinated and unilateral patent pledges. This research led to the publication of the following article: Apprehending patent pledges made outside of Standard-Setting Organisations through the Lens of EU Competition Law. European Competition Law Review, Vol 42, Issue 10, pp. 536-547, 2021.
The second part of this project focused only on unilateral patent pledges and investigated the enforcement of pledges made outside of SSOs. Mirroring the approach taken in Europe with the classic pledges - FRAND commitments - this research proposed to explore the specificities of raising a potential competition law defence in the case of pledges made outside of SSOs. Indeed, the general scheme for both FRAND commitments and unilateral pledges made outside of SSOs is comparable. Standard-essential patents (SEP) holders commit to license on FRAND terms and implementers rely on that commitment incurring important investments. The same goes for unilateral patent pledges: the pledgor promises not to assert its patents and the beneficiaries rely on that promise incurring important investments. From an economic perspective, whether a pledge made on standard-essential patents is made outside or within an SSO has the same implications. In both cases, legitimate expectations are created. However, though some pledges share common features with the well-known FRAND commitments, unilateral patent pledges present unique and original characteristics. Accordingly, this project looked at the possibility of raising a potential competition law defence for certain pledges made outside of SSOs using the framework proposed by the ECJ in Huawei vs. ZTE.
This project addressed the following questions: How would EU competition law apprehend these pledges? Can/should European competition law assist in guaranteeing the enforcement of such pledges? If so, in what manner?