Nondiscrimination in Standard Essential Patents; ND Prong V. Art. 102(C) TFEU

IF 16.4 1区化学 Q1 CHEMISTRY, MULTIDISCIPLINARY

Accounts of Chemical Research Pub Date : 2021-07-07 DOI:10.1093/JOCLEC/NHAB011

M. Botta

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Abstract

The article analyses the meaning of the nondiscriminatory principle in disputes concerning Standard Essential Patents (SEPs) under EU competition and contract law (that is, ND prong). The article reviews the economics literature, looking at the welfare effect of price discrimination and the interpretation of the ND prong provided by a number of economists. Secondly, the article analyses the case law of the EU Court of Justice on Art. 102(c) TFEU and recent rulings by the German and British courts concerning the scope of the application of the ND prong. A strategy of discrimination in regard to royalty rates may be sanctioned, both under competition and contract law. However, Art. 102(c) requires a higher burden of proof than contract law. As a consequence, it is unsurprising that no case of royalty rate discrimination has ever been sanctioned in Europe as an abuse of dominance. While courts and economists generally agree that the ND prong is applicable only when licensees are “similarly situated,” to date, there is no common understanding of the meaning of this expression. In particular, it is unclear whether, and to what extent, licensees are “similarly situated” if they are not competitors in the downstream market.

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标准基本专利中的不歧视；ND Prong V.TFEU第102（C）条

本文分析了非歧视原则在欧盟竞争和合同法（即ND prong）下的标准基本专利纠纷中的含义。本文回顾了经济学文献，考察了价格歧视的福利效应以及一些经济学家对ND叉的解释。其次，文章分析了欧盟法院关于TFEU第102（c）条的判例法以及德国和英国法院最近关于ND prong适用范围的裁决。根据竞争法和合同法，在特许权使用费费率方面的歧视策略可能会受到制裁。然而，第102（c）条要求的举证责任高于合同法。因此，毫不奇怪，在欧洲从未有任何一宗版税歧视案件被视为滥用主导地位而受到制裁。虽然法院和经济学家普遍认为，只有当被许可人“处境相似”时，ND术语才适用，但迄今为止，对这一表述的含义还没有达成共识。特别是，如果被许可人不是下游市场的竞争对手，那么他们是否以及在多大程度上“处境相似”尚不清楚。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Accounts of Chemical Research 化学-化学综合

CiteScore

31.40

自引率

1.10%

发文量

312

审稿时长

2 months

期刊介绍： Accounts of Chemical Research presents short, concise and critical articles offering easy-to-read overviews of basic research and applications in all areas of chemistry and biochemistry. These short reviews focus on research from the author’s own laboratory and are designed to teach the reader about a research project. In addition, Accounts of Chemical Research publishes commentaries that give an informed opinion on a current research problem. Special Issues online are devoted to a single topic of unusual activity and significance. Accounts of Chemical Research replaces the traditional article abstract with an article "Conspectus." These entries synopsize the research affording the reader a closer look at the content and significance of an article. Through this provision of a more detailed description of the article contents, the Conspectus enhances the article's discoverability by search engines and the exposure for the research.