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Publishers Abstract:
By reviewing past cases of the two legal systems, the article aims to identify the conditions in which an SEP owner's licensing practice might trigger an antitrust liability. The article evaluates the applicability of Article 102 TFEU, Section 2 of the Sherman Act, and Sections of the FTCA. The analysis shows that EU competition law and US antitrust law have different scopes in addressing cases of patent hold-up. Whereas Article 102 TFEU enables the Commission to prosecute not only licensing practices that have exclusionary effects, but also those that result in a mere exploitation, Section 2 of the Sherman act has a more limited scope. A SEP owner will not face an antitrust liability under the Sherman act unless the licensing strategy allows an anti-competitive acquisition of market power. Although Section 5 of the FTCA could capture some conduct that escapes liability under Section 2, its exact scope remains to be defined.
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