The IEEE-SA patent policy update under the lens of EU competition law

Abstract

In 2015, the Institute of Electrical and Electronics Engineers (IEEE) Standardization Association made some controversial changes to its patent policy. The changes include a recommended method of calculation of FRAND royalty rates, and a request to members holding a standardessential patent to forego their right to seek an injunction except under limited circumstances. The updated policy was adopted by the IEEE Board of Directors after obtaining a favourable Business Review Letter by the US Department of Justice, which found any potential competitive harm from the policy to be outweighed by potential pro-competitive benefits. In this paper, we examine whether the same favourable conclusion would be reached under EU competition analysis. After discussing the role of patent policies of standard-setting organizations and the rules and principles applicable to the IEEE's activities, the paper concludes that standardization agreements based on the updated policy may constitute a violation of article 101 TFEU.

Wearing multiple hats—The role of working group chairs’ affiliation in standards development

“…A number of recent books have investigated the history and governance principles of SDOs in the field of ICT (DeNardis, 2014;Harcourt et al, 2020;Russell, 2014;ten Oever et al, 2020;Kanevskaia, 2022), and detailed case studies examined the processes and institutional evolution of single SDOs, e.g., ISO (Murphy and Yates, 2009;Delimatsis, 2018), IEEE (Zingales and Kanevskaia, 2016), and W3C (Halpin, 2017). Baron et al (2019a) compared the governance rules of 17 SDOs, including leadership election processes.…”

Data collaboratives, competition law and the governance of EU data spaces

“…137 This raises the question of whether the safe harbours we have just seen would be applicable, mutatis mutandis, to this different environment: in particular, it is plausible that standardization agreements generate anti-competitive effects regardless of their respect of the four aforementioned conditions, to the extent that the setting of interoperability and portability standards is done by undertakings with market power, and that these undertakings manage to control or substantially influence the standard-setting process (yet without needing to establish that these amount to de facto standards). 138 This doubt is reinforced by the soft wording of the two safe harbours, which refer to agreements that 'normally' will fall outside the scope of Article 101 139 and that are not likely to give rise to restrictive effects on competition, 140 thus not leaving prospective co-operators much certainty.…”

SSOs’ Role in Facilitating IP Policy Measures

“…118 There was an attempt to qualify FRAND and the suggested royalty rate for licensing of essential patents. 119 Further, an amendment sought to waive the right of seeking an injunction for an essential patent against an implementer. The essential patent holder can lay a claim of injunction only after a successful claim of infringement against the unlicensed implementer in the Court of Appeals.…”