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 standard-essential 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.