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Standardiseringsavtal och patent ur konkurrensrättsligt perspektiv. - Särskilt om ex ante licensiering

Kolonej, David (2008)
Department of Law
Abstract
The purpose of technical standards is to define technical requirements for products in order to achieve compatibility and interoperability. To a large extent standards are established through agreement in standard-setting organisations. Standardisation agreements are agreements between competing firms and imply an agreement to refrain from manufacturing products non-compliant with the standard. Standardisation agreements may therefore raise competition law concerns. Standardisation, however, can have great economic benefits and is often necessary for technological development. The European Commission, in general, has a positive view on standardisation agreements that are established through open and transparent procedures and that are set... (More)
The purpose of technical standards is to define technical requirements for products in order to achieve compatibility and interoperability. To a large extent standards are established through agreement in standard-setting organisations. Standardisation agreements are agreements between competing firms and imply an agreement to refrain from manufacturing products non-compliant with the standard. Standardisation agreements may therefore raise competition law concerns. Standardisation, however, can have great economic benefits and is often necessary for technological development. The European Commission, in general, has a positive view on standardisation agreements that are established through open and transparent procedures and that are set on an objective and non-discriminatory basis. Once a standard has been established, network-, and lock-in effects will make alternative technologies far less attractive. If a standard is covered by intellectual property rights, patents essential to the standard will increase in value and market power. It has been argued that intellectual property right holders have motive, to try, to unfairly appropriate the value created by standardisation itself. Right holders have deliberately withheld information about patents from standard setting projects in which they have participated, in order to, once the market was locked in, demand higher royalties than would have been otherwise possible. Such behaviour has been described as a ''patent-ambush''. It has been suggested that licensing terms should be discussed and set before the adoption of a standard in order to prevent right holders from obstructing, delaying or making standards unnecessarily costly. Such ex ante licensing raises competition law concerns. In particular questions of foreclosure, abuse of buyer power, illegal information exchange and collusion are relevant. The current European legal position regarding ex ante licensing is quite unclear. The European Commission has indicated that it may take a positive view on ex ante licensing if subject to appropriate safeguards and if not unduly restricting competition. (Less)
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author
Kolonej, David
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Konkurrensrätt, EG-rätt, Immaterialrätt
language
Swedish
id
1559224
date added to LUP
2010-03-08 15:55:23
date last changed
2010-03-08 15:55:23
@misc{1559224,
  abstract     = {The purpose of technical standards is to define technical requirements for products in order to achieve compatibility and interoperability. To a large extent standards are established through agreement in standard-setting organisations. Standardisation agreements are agreements between competing firms and imply an agreement to refrain from manufacturing products non-compliant with the standard. Standardisation agreements may therefore raise competition law concerns. Standardisation, however, can have great economic benefits and is often necessary for technological development. The European Commission, in general, has a positive view on standardisation agreements that are established through open and transparent procedures and that are set on an objective and non-discriminatory basis. Once a standard has been established, network-, and lock-in effects will make alternative technologies far less attractive. If a standard is covered by intellectual property rights, patents essential to the standard will increase in value and market power. It has been argued that intellectual property right holders have motive, to try, to unfairly appropriate the value created by standardisation itself. Right holders have deliberately withheld information about patents from standard setting projects in which they have participated, in order to, once the market was locked in, demand higher royalties than would have been otherwise possible. Such behaviour has been described as a ''patent-ambush''. It has been suggested that licensing terms should be discussed and set before the adoption of a standard in order to prevent right holders from obstructing, delaying or making standards unnecessarily costly. Such ex ante licensing raises competition law concerns. In particular questions of foreclosure, abuse of buyer power, illegal information exchange and collusion are relevant. The current European legal position regarding ex ante licensing is quite unclear. The European Commission has indicated that it may take a positive view on ex ante licensing if subject to appropriate safeguards and if not unduly restricting competition.},
  author       = {Kolonej, David},
  keyword      = {Konkurrensrätt,EG-rätt,Immaterialrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Standardiseringsavtal och patent ur konkurrensrättsligt perspektiv. - Särskilt om ex ante licensiering},
  year         = {2008},
}