The emerging of the Internet of Things, with its set of new interconnected products and services, has brought renewed interests on the issue of standard essential patents (SEPs) and access to standardized communication tecnologies. As far as SEPs are concerned, there is a growing consensus around the idea that they should be treated differently from common IPRs. As the very same name implies, SEPs are essential rights, whose access is indispensable for those willing to produce standard-compliant products or services. As a consequence, they are deemed to confer a much stronger degree of market power than the one normally granted by the mere onwership of a patent. Such assumption, however, althought fascinating at first, seems quite dangerous for competition law scholars. And indeed it may carry as a corollary the straight conclusion that each holders of a standard essential patent could be held dominant just because she owns a title of protection which she has declared to be indispensable to work the technology selected as standard. Such equation risks to lead competition authorities to wrong assessment of cases. This is because on the one side, there could be indeed competing technology standards the implementer could turn to: hence, the SEP holder would not be dominant. On the other side, even in cases where the elected technology happens to be the only one available on the market, there could be a variety of cases where the specific patent at issue is not truly essential, because it has been wrongfully claimed to be essential to implement the standard. First of all, the SEP could have been wrongfully claimed to be essential by its owner. Secondly, a SEP could regard a certain portion of the overall technology which is no longer essential, because it has been replaced by a newer component, or that it simply optional and not mandatory. Given this vast set of variables, we suggest that dominance in the case of technological standards, and where SEPs are involved, should be assessed — like in every other case — by taking into account the specific circumstances of the case and in a way to effectively measure the indispensability of the standard in a certain market and the true essentiality of the specific IPR in questions to the implementation of the standard itself.
Brevetti essenziali, dominanza e abuso nel settore delle information & communication technologies
E. Arezzo
2019-01-01
Abstract
The emerging of the Internet of Things, with its set of new interconnected products and services, has brought renewed interests on the issue of standard essential patents (SEPs) and access to standardized communication tecnologies. As far as SEPs are concerned, there is a growing consensus around the idea that they should be treated differently from common IPRs. As the very same name implies, SEPs are essential rights, whose access is indispensable for those willing to produce standard-compliant products or services. As a consequence, they are deemed to confer a much stronger degree of market power than the one normally granted by the mere onwership of a patent. Such assumption, however, althought fascinating at first, seems quite dangerous for competition law scholars. And indeed it may carry as a corollary the straight conclusion that each holders of a standard essential patent could be held dominant just because she owns a title of protection which she has declared to be indispensable to work the technology selected as standard. Such equation risks to lead competition authorities to wrong assessment of cases. This is because on the one side, there could be indeed competing technology standards the implementer could turn to: hence, the SEP holder would not be dominant. On the other side, even in cases where the elected technology happens to be the only one available on the market, there could be a variety of cases where the specific patent at issue is not truly essential, because it has been wrongfully claimed to be essential to implement the standard. First of all, the SEP could have been wrongfully claimed to be essential by its owner. Secondly, a SEP could regard a certain portion of the overall technology which is no longer essential, because it has been replaced by a newer component, or that it simply optional and not mandatory. Given this vast set of variables, we suggest that dominance in the case of technological standards, and where SEPs are involved, should be assessed — like in every other case — by taking into account the specific circumstances of the case and in a way to effectively measure the indispensability of the standard in a certain market and the true essentiality of the specific IPR in questions to the implementation of the standard itself.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
