Is dominance the missing piece of the Huwawei puzzle?

A standard-essential-patent is not just like any other patent. As the very same name implies, it is a patent insisting on a teaching, often a sliver of technology, that forms a standard. When a certain technology becomes the – or is chosen to be a -- standard, such a determination has generally the effect of excluding the existing competing alternatives from the market. Access to the standard becomes then essential to compete both in the markets of standard-embedding products and in the (related) markets for standard-compatible devices or tools, which must be fully interoperable and functional with the standard product or technology. This means that proprietary control – thanks to IPRs -- on such technologies often becomes the key to rule the market(s). From this comes the specialty of the SEP or standard essential IPRs in general. To complete this picture, however, one must add that in complex technologies markets products are often featured by a vast set of components, each separately patentable. And this happens also for technological standards, which happen to be protected by several hundreds patents. So while control on the standard is crucial, can the mere holding of a patent on a fragment of technology composing the overall standard be regarded as conferring dominance? This crucial question – not raised in the preliminary ruling – seems to remain dormant in the Huawei judgement, but it is somehow implicitly answered in the affirmative. This contribution will try to delve into this issue and to provide some suggestions to be applied to future cases.