European Commission Market-Tests Samsung Antitrust Commitments

By Dugie Standeford for Intellectual Property Watch

The European Commission wants feedback from interested parties on a proposal by Samsung Electronics to resolve an antitrust investigation. The case relates to Samsung’s efforts to enforce standard essential patents (SEPs) it owns for mobile communications technology. SEPs are patents that protect technologies essential for the implementation of an industry standard developed by a standard-setting organisation.

The antitrust probe, begun in January 2012, arose from EC concerns that Samsung’s attempt to seek injunctions against Apple based on Samsung’s 3G Universal Mobile Telecommunications System SEPs in several EU member states might breach the Treaty on the Functioning of the EU, which prohibits abuse of a dominant market position.

Samsung owns SEPs related to mobile telecom standards and has committed to licensing them on fair, reasonable and non-discriminatory (FRAND) terms. Apple was willing to sign a licensing agreement on FRAND terms for Samsung’s SEPs, but the latter launched court proceedings instead.

To settle the case, Samsung offered several concessions, the EC said. In particular, it proposed not to seek any injunctions for five years, based on any of its current and future SEPs that relate to technologies used in smartphones and tablets, against any company that agrees to a particular licensing arrangement.

All documents in the case, including Samsung’s commitments, are here. Comments are due within one month from publication in the EU Official Journal.

[Update:] Apple declined to comment on the EC statement, but pointed to a FOSS Patents blog posting in which intellectual property analyst Florian Mueller said there is “significant risk” that the ultimate outcome of the EU antitrust probe against Samsung “could be thoroughly disappointing.” The EC should have rejected Samsung’s offer outright, he said. That is because, among other problems, the five-year period is too short and the requirement that if parties can’t agree on either submitting disputes to court or arbitration they will have to use arbitration is “irreconcilable with the rule of law.”