While this side of the Atlantic, the judgment of September 17, 2007 Microsoft is still in memory, a U.S. Court of Appeals recently adopted a decision that illustrates the extent of the debate on the relationship between competition law and intellectual property law.
Under the Lisbon strategy, the European Commission recently noted that standardization the fact to establish industrial standards and technology was "a key to innovation promotion instrument". This standardization would accompany the emergence of new markets and contribute to the dissemination of knowledge and technologies. The Commission notes however that these benefits can be hampered by the use of intellectual property rights. It therefore encourages the standardisation bodies (Etsi, ISO, etc.) to further consider these issues. The same logic, the Commission seems prepared to use competition law to apprehend the abusive behaviour of the participants in the standardization process.
The American authorities have faced this problem with a time of advance on their community counterparts. In the heart of the debate, a "deception" in a standards body. Indeed, in 2006, the Federal Trade Commission (FTC) found that Rambus enterprise, specialized in the development of electronic components, had made a practice of exclusion. Rambus belonged to an organization of Standardization (Jedec) policy provided the disclosure before the adoption of a standard patent held by its members. However, Rambus has knowingly concealed its patents and left the Jedec adopt a standard in fact covering such patents before continuing infringement of standard products manufacturers. The FTC has decided that this forbearance was unreasonable on the grounds that it was private manufacturers or the possibility to choose an alternative technology either to negotiate reasonable and non-discriminatory conditions of licence with Rambus.
Before use, a U.S. Court of appeals set aside this decision in finding non-based both alternatives highlighted by the FTC. On the one hand, the FTC has not demonstrated that the Jedec would have standardized alternative to Rambus technology if the members had been informed of the existence of patents; evidence that may show difficult to report a posteriori. On the other hand, a deceit to claim the higher price is not, according to the Court, of that fact alone in the field of application of antitrust law. It must demonstrate an infringement of the competition in the form of an exclusion condition which is not met in this case since the practice has only resulted in the loss of an opportunity to negotiate reasonable terms and conditions.
This case raises interesting questions. In the United States, first, is considering its scope. Is it limited to only essential patent or has a wider scope In addition, one wonders if, after others, this judgment is not yet identify the role of U.S. antitrust law in General and the provisions against abuse of monopolization in particular.
A strong signal
In Europe, then, what is its impact on the proceedings initiated by the Commission in 2007 from the same company, Rambus, potentially excessive prices claimed after his misleading concealment Dare go forward at the risk of relaunching the debate on a possible transatlantic divergence and the difference in treatment which accompanies it The motivation of this American decision does indeed not lack of status when this side of the Atlantic, more than six months after the Microsoft case, the Commission was slow to publish guidelines on the implementation of article 82 of the Treaty, which prohibits the abuse of dominant position.
For standards organizations and businesses, finally, this judgment just inform the concerns outlined by the Commission in a new light. In addition, insofar as this case makes extremely strict conditions to the application of antitrust law to the behaviour of Rambus, it seems to send a strong signal to standards organizations and businesses involved. The sent signal could be decrypted as follows: protect your misleading conduct by adapting appropriately your statutes and agreements, provided that they comply with competition law.