Concurrences – January 2018
Author: Roberto Dini, Fondatore di Metroconsult
The ECJ decision ruled on two competing companies (Huawei and ZTE), manufacturing the patented technology and selling the related products into the market. The principle aim of the ruling is to avoid that a company abuses its position of being a patent owner and thereby subtracting market share from a competitor. But what happens in the case of non-competing companies, for instance, a non-practicing entity (NPE) vs. a practicing entity? Should the ECJ decision be applied? NPEs do not aim at introducing discriminations between various market players. Actually, it is in the best interest of the NPE – having no market share – that the market is equally licensed, ensuring all companies are licensed on affordable and equal terms. In addition, it must be taken into consideration that injunctions reduce the number of products sold and this goes against the interest of the NPE that would prefer to have a larger number of patented products circulated within the market. Therefore, it becomes incomprehensible the reason why the rules of the competition are mentioned in this connection.
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