The European Commission on Tuesday opened a formal investigation into whether Samsung has used its patents to “distort competition” in the European mobile market.
At issue is Samsung’s attempt to have Apple products banned in various EU members states for patent infringement – from Italy and France to Germany and the Netherlands – though those efforts have not been very successful.
“The Commission will investigate, in particular, whether in doing so Samsung has failed to honour its irrevocable commitment given in 1998 to the European Telecommunications Standards Institute (ETSI) to license any standard essential patents relating to European mobile telephony standards on fair, reasonable and non-discriminatory (FRAND) terms,” the commission said in a statement.
“The Commission will examine whether such behaviour amounts to an abuse of a dominant position prohibited by Article 102 of the Treaty on the Functioning of the EU (TFEU).”
EU rules require companies that hold patents essential to the implementation of a standard to license them on FRAND terms.
“Such commitments were given to ETSI by many patent holders, including Samsung, when the third generation (’3G’) mobile and wireless telecommunications system standards were adopted in Europe,” the EU said.
“In order to guarantee undistorted competition and to reap the positive economic effects of standardisation it is important that FRAND commitments be fully honoured by the concerned undertakings.”
The EU said it will review the case as a priority.
In a statement, Samsung said it “has not received any formal notice and is unable to discuss the matter at this time.”
News of a possible EU investigation into Samsung first emerged in early November. At the time, officials asked Samsung and Apple to turn over data related to the enforcement of mobile-related patents.
In a Tuesday post, patent blogger Florian Mueller said “the launch of a full-blown investigation after a few months of preliminary investigations is an important step.”
“This means European competition enforcers have received information, in response to questionnaires (sent to Apple, which may have informally complained, and Samsung) that warrant a more formal effort,” Mueller wrote.
But why is Samsung being penalized when Apple has also filed multiple patent suits in Europe? Mueller said it comes down to the fact that Samsung is pursuing cases related to patents that are essential to wireless telecommunications standards, whereas “Apple has never sued anyone over a patent of that kind,” he said. “In fact, Apple never participated in such a standard-setting process as far as I know.”
In theory, Apple could be targeted, but it would not be on FRAND-related issues, Mueller said. If anything, today’s investigation should be a warning to those thinking about pursuing injunctions based on FRAND-related standards patents, he wrote.
“In particular, Motorola Mobility has already won (but, to the best of my knowledge, not yet sought to enforce) an injunction against Apple in Germany,” Mueller wrote. “Motorola’s conduct is also relevant to the ongoing competition review of its proposed acquisition by Google.
As I wrote last week, there’s a risk of Google putting its muscle behind widespread FRAND abuse post-acquisition.”