A few thoughts on the non-discriminatory prong of FRAND

Guest post by Carlos Muñoz Ferrandis*

While the Fair and Reasonable prongs of FRAND have been largely discussed, the prong now deserving an exhaustive analysis in the light of latest case law in Germany, UK and US is the Non-Discrimination (ND) prong of FRAND. At the end of the day, the interpretation given to the Non-Discrimination rule will have an impact on the incentives to innovate of the firms participating in the standard setting process and seeking a return on investment via SEP licensing. Hence, a “miss-shape” of this rule has the potential to harm the standardization process in itself.

So, how does one assess whether an offer complies with the commitment to license at non-discriminatory terms?

Continue reading “A few thoughts on the non-discriminatory prong of FRAND”

Happy New Year from us at TrustinIP!

Many things have happened in the world of IP and competition law in 2018. At TrustinIP, we have had some extraordinary guest posts, which is why we would like to take the opportunity to thank all the contributors and all our readers and wish everyone a happy new year. We are very proud to be a truly international blog with contributors from all over the world. The guest posts topics have concerned emerging inventions and technologies such as Crispr Cas9 and blockchain as well as wider policy questions such as copyright after Brexit or the patent working requirement in India. Below, we have summarized the guest posts from this year.

Continue reading “Happy New Year from us at TrustinIP!”

China announced sweeping punishment measures for dishonesty in patent arena

Earlier this month, China published a memorandum of cooperation for joint efforts to strengthen punishment for dishonesty in patent arena, signed by a total of 38 government bodies including the supreme court, central bank, ministry of finance, patent office etc. According to this memorandum, dozens of punishment measures will soon be targeted at “severely dishonest behavior” such as repeated patent infringements, refusal to comply with administrative decisions, obstruction of local IP offices in conducting investigations and collecting evidence etc.

Continue reading “China announced sweeping punishment measures for dishonesty in patent arena”

Will the CJEU’s Decision in MEO Change FRAND Disputes Globally?


Guest post By Urška Petrovčič*

In April 2018, the Court of Justice of the European Union (CJEU) issued a decision in MEO v. Autoridade da Concorrência that clarified the circumstances in which price discrimination would trigger liability under Article 102(c) TFEU.

The dispute arose after MEO—a Portuguese telecommunications company that provides paid television signal transmission service and television content—appealed a decision of the Portuguese competition authority to terminate its investigation of an allegedly anticompetitive licensing practice of the Cooperativa de Gestão dos Direitos dos Artistas Intérpretes ou Executantes (GDA).

Continue reading “Will the CJEU’s Decision in MEO Change FRAND Disputes Globally?”

The Commission seeks feedback to reform the “Vertical Block Exemption Regulation”

The “Vertical Block Exemption Regulation” (“VBER”, Reg. n. 330/2010) and the accompanying Guidelines on Vertical Restraints (“Guidelines”) are now almost nine years old and the European Commission has recently launched an evaluation roadmap to assess whether these documents can still be considered fit or need to be updated in light of the developments occurred over the last years, notably the increased importance of online sales and the emergence of new market players such as online platforms.

Continue reading “The Commission seeks feedback to reform the “Vertical Block Exemption Regulation””

Unwired Planet vs Huawei: the Appeal

Guest post by Vicente Zafrilla Díaz-Marta*

Earlier this week the Court of Appeal of London (Civil Division) published its judgement on appeal against the decision of Justice Birss in the Unwired Planet vs. Huawei case.

A brief summary of the facts and the evolution of the case

Unwired Planet sued Huawei for the infringement of various essential patents (SEPs) needed to implement the 2G, 3G and 4G technologies on the defendant´s devices. These patents had mostly been acquired by Unwired Planet from Ericsson. Other defendants, such as Samsung or Google reached agreements with UP along the proceedings.

Although both parties agreed to sign a license agreement, there were discrepancies concerning its terms, and its conformity or not with FRAND conditions. Continue reading “Unwired Planet vs Huawei: the Appeal”

Does Amazon comply with EU competition law? Some initial thoughts on the new Commission investigation

A few days ago the European Commission opened a preliminary investigation against Amazon to assess whether the American company is engaging in anticompetitive conducts. The Commission is concerned by the dual role of Amazon, which is at the same time owner of the biggest online market place and a seller of its private label products therein. Since Amazon obtains a significant amount of data from the transactions occurring on its market place, DG Comp suspects that Amazon might be using this information to better tailor its private label offer and eventually exclude the other retailers active on the market place. Continue reading “Does Amazon comply with EU competition law? Some initial thoughts on the new Commission investigation”

Can Blockchain be a ‘reasonable step’ to keep trade secrets safe?

Guest post by Alessio Balbo*

Blockchain and trade secrets: an interesting combination, surely, but how do they fit? It is worth to mention that know-how and trade secrets are among those intangible assets which have historically been difficult to protect for companies, as they do not fall under the scope of the more classical intellectual property rights, by nature (actually, by law) easier to protect or to enforce. A classic example of a trade secret is the Coca-Cola recipe, kept secret for generations of CEOs, and is apparently often changed, as the rumours whisper. This example shows the importance of trade secrets and the investments that companies make in order to protect such valuable information.  Continue reading “Can Blockchain be a ‘reasonable step’ to keep trade secrets safe?”

Oracle America v. Google: The battle of the code

Guest post by Carlos Muñoz Ferrandis*

Introduction

Welcome to a clash of software titans, where Oracle achieved to defend its proprietary code (Java) from the unstoppable and ever-expanding dominion of the open source-based Google platform, Android. This decision, even if showing an incredibly interesting copyright case shaping the U.S. concept of the fair use, pushes us to go beyond and adopt an overall perspective of current market behaviours of tech giants in the software sector.

The story of the case could be divided in two parts. The first one, dealing with the copyrightability of 37 Application Programming Interfaces (API). The Federal Circuit in 2014, following Oracle’s appeal to a 2012 District Court decision, declared the declaring code and the API packages’ structure, sequence, and organization (SSO) copyrightable as a matter of law. And the second one, where the two software giants had opposing approaches on question of fair use. Oracle again appealed a District Court decision of 2016, where the court had found that there was fair use. This stage ended on the 27th of March 2018 when the Federal Circuit declared that Google’s use of the Java API packages was not fair use. Continue reading “Oracle America v. Google: The battle of the code”

Is resale price maintenance illegal in China? The Gree case

In competition law, vertical resale price maintenance (“RPM”) agreements between upstream and downstream firms are generally seen as not so severely harmful to competition as horizontal price-fixing agreements among direct competitors. Therefore, whether and to what extent RPM should be prohibited is a question having been answered differently in different jurisdictions. A peculiar situation exists in China, where even in the same country the standard for assessing legality of RPM diverges between administrative and judicial enforcement. While, in administrative enforcement, the responsible enforcement body, the National Development and Reform Committee (“NDRC”) considers RPM illegal “per se”, the Chinese courts have established a more moderate  approach based on the “rule of reason” to assess the legality of such agreements. The latter approach is well exemplified in the Gree case, for which the Guangdong Higher People’s Court has issued a second instance decision earlier this month. Continue reading “Is resale price maintenance illegal in China? The Gree case”