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Google calls in favours in the Senate

by on24 July 2012

Ructions in Europe warn lawyers

Google appeals US Senate Judiciary Committee in a bid to get a number of Apple’s iPhone patents considered as industry standards and made available to all.

Legal firm Pinsent Masons has warned that if this succeeds it will have wider ramifications, particularly in Europe,. Deborah Bould, partner in Pinsent Masons’ IP practice and Natasha Pearman of Pinsent Masons’ competition practice have issued a report which said that while this case currently only affects the USA, the US Senate Judiciary Committee is trying to decide whether companies with standards essential patents should be prevented from getting an injunction against infringers.

If this happesn then there is nothing to stop the European Commission widening its ongoing investigation of essential patents and their licensing by companies including Samsung and Motorola Mobility/Google to cover de facto standards along similar lines.

Indeed, Joaquín Almunia Vice President of the European Commission, who is responsible for Competition Policy has stated that he is “determined to use antitrust enforcement to prevent the misuse of patent rights to the detriment of a vigorous and accessible market”, the report noted.

They think it is likely that the Commission would take a similar approach to that adopted in the Microsoft interoperability cases, where a refusal to supply interoperability information to competitors was considered to be an abuse of dominance. It will be difficult for the  Commission to prove there was no reasonable alternative to the de facto standard and that the patent holder had a dominant position; which is not a straightforward analysis.

“However, we believe that the Commission is looking to get its teeth into these complex issues and start to set a precedent for the future that competition and IP should be directed at increasing innovation and not merely awarding or protecting IP rights” the report said.

This is particularly the case where there is little merit or innovation and where these are likely to be detrimental to consumers. Overall, this could open up another avenue in the ongoing IP battles that we are seeing in Europe, they said.

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