Fuchs, Andreas --- "Patent Ambush Strategies and Article 102 TFEU" [2011] ELECD 750; in Drexl, Josef; Grimes, S. Warren; Jones, A. Clifford; Peritz, J.R. Rudolph; Swaine, T. Edward (eds), "More Common Ground for International Competition Law?" (Edward Elgar Publishing, 2011)

Book Title: More Common Ground for International Competition Law?

Editor(s): Drexl, Josef; Grimes, S. Warren; Jones, A. Clifford; Peritz, J.R. Rudolph; Swaine, T. Edward

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803946

Section: Chapter 10

Section Title: Patent Ambush Strategies and Article 102 TFEU

Author(s): Fuchs, Andreas

Number of pages: 21

Extract:

10. Patent ambush strategies and
Article 102 TFEU
Andreas Fuchs

1 INTRODUCTION

In recent years a topic at the interface of antitrust law and IP law has
attracted the attention of antitrust authorities on both sides of the Atlantic:
the scenario commonly referred to as `patent ambush'. The strategy under-
lying this phenomenon, which has become known in connection with the
activities of private standard-setting organizations (SSOs), may be charac-
terized by two steps. The first is taken during an ongoing standard-setting
procedure conducted by an SSO or a special committee of it which is about
to decide on the possible adoption of a technical or quality standard con-
cerning products or processes in an industry.1 A firm, usually a member of
the relevant SSO, participates in the process of working out the features of
the standard, but does not play by the rules of the SSO that provide for an
obligation to disclose any patents or pending patent applications that may
be relevant for the potential standard. Rather, it deliberately decides not
to disclose its (pending) IP rights in order not to reduce the prospects of
its technology becoming part of the standard, and regularly works actively
in this direction within the SSO.2 Once the standard has been adopted and


1 The term `standard' is used to describe a set of technical specifications that

provides or is intended to provide a common design for a product or process. For
a more detailed description and definition ...