Seeking injunctions in SEPs infringement proceedings as an abuse of dominant position under Article 102 TFEU

Abstract: Even though standards have beneficial effects in the network-dependent information and communication technologies industry, they also bring along competition law concerns, especially since they are based on patent-protected technologies. In those circumstances, owners of standard essential patents (“SEPs”) in fact control access to the market. Competition authorities have thus turned their attention towards the unilateral conduct of SEPs owners who are dominant undertakings and who may potentially use the position that they have acquired by inclusion of their technology into a standard in order to succeed with anti-competitive demands. This thesis discusses the conditions under which SEP owners who have committed to license their patents on fair, reasonable and non-discriminatory terms can be found abusing their dominant position under article 102 TFEU by seeking injunctions against unlicensed manufacturers of the standard-compliant goods. It provides analysis of the different legal tests used by national courts and the European Commission in comparison with the approach articulated by the Court of Justice of the EU in the recently rendered judgment in Huawei v ZTE.