On 3 April 2012, the European Commission announced that it had
opened an antitrust investigation against Motorola Mobility over
concerns that the US-based mobile phone company may be abusing its
dominant position by obstructing the use of certain of its standard
essential patents, contrary to Article 102 TFEU.
The Commission's opening of a formal investigation follows
recent complaints by both Apple and Microsoft that Motorola
Mobility is acting abusively by seeking and enforcing injunctions
against them for their use of its standard essential patents in
certain web-video applications contained in such flagship products
as the iPhone, iPad, Windows and Xbox (see VBB on Competition Law,
Volume 2012, No. 2, available at www.vbb.com). In particular, Apple
and Microsoft allege that Motorola Mobility is charging too much
for the use of these essential patents.
At the time when standards were adopted for 2G and 3G mobile and
wireless telecommunications systems as well as for the H.264 video
compression and wireless local area network (WLAN) technologies,
Motorola Mobility had formally committed to the relevant
standard-setting organisations that it would license any of its
patents essential for the implementation of these standards on
so-called FRAND ("fair, reasonable and
non-discriminatory") terms. More recently, court proceedings
have been launched by Motorola Mobility in the US and the EU
requesting that its rivals withdraw their devices from the market,
or stop using these standard essential patents altogether.
The Commission is concerned that Motorola Mobility may not have
honoured its commitments by seeking to obstruct the use of its
essential patents by competitors through injunction actions in
several EU Member States. Under the Commission's own revised
2010 Horizontal Cooperation Guidelines, which contain a new section
on standardisation agreements (see VBB on Competition Law, Volume
2010, No. 12, available at www.vbb.com), it is stated that all
essential IPR-protected technology should be made available to all
users of that standard on FRAND terms in order to prevent rights
holders from obstructing the use of the standard such as by
refusing to license or by doing so on unfair, reasonable and
This latest case is part of a wider series of Commission
investigations into possible anti-competitive practices involving
patent disputes in the high-technology sector. In January 2012, the
Commission had already opened an investigation against Samsung
Electronics on alleged anti-competitive practices in relation to
its own standard essential patents in the mobile phone market (see
VBB on Competition Law, Volume 2012, No. 2, available at
www.vbb.com). The Commission has signalled that it would scrutinise
more closely the "surge in the strategic use of
patents" which is currently taking place in the
Motorola Mobility has reached agreement to be acquired by
Google. This transaction was approved by the European Commission on
13 February 2012 (see VBB on Competition Law, Volume 2012, No. 2,
available at www.vbb.com).
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