Standard Essential Patents and Antitrust Law in the Age of Standardisation and the Internet of Things: Shifting Paradigms

The debate on how to promote competition vis-à-vis the exclusivity of patent law has acquired new accents with the necessity to have access to standard essential patents for the Internet of Things. Patent ambush or patent thickets may be obstacles to more connectivity in sectors such as automated driving. Yet, the Court of Justice raised the bar for intervention in the Huawei case on compulsory licenses as a defence against patent violation claims. The European Commission, in its quest to enable the Internet of Things, has therefore turned away from enforcement of the abuse of dominance provisions in patent cases by proposing other tools in its 2017 communication on standard essential patents. The proposals – more transparency for licensing, more open source – may be read as preparation for regulation. The proposals have deficits, too. To remedy the problem, the Commission most probably will introduce sectoral regulation. It may be more fruitful to pursue a competition-oriented path by: (a) a competition-law control of IoT platforms, (b) an innovation-oriented merger policy as started with Dow/Dupont, and (c) the use of interim measures in the specific IoT context according to Art. 8 of Regulation 1/2003 with presumptions of dominance and abuse.