Journal Name: European Intellectual Property Review

Volume Number: 43

Issue Number: 7

Abstract:

The pursuit of injunctive relief for patent infringement against a defendant who has implemented a patented technology standard without concluding a patent licence with the patent holder may, depending on the circumstances, have exclusionary effects that are harmful to competition. Should it make a difference whether the
patent in question (1) involves a technology standard developed under the auspices of a standard-setting organisation (i.e. a standard essential patent or SEP); or (2) covers an invention that is incorporated into technology standard that was not developed through this standard-setting process (i.e. a patent that is essential to a de facto standard or “de facto essential patent” for short)? From a competition law perspective, the potential harms to competition remain the same in both categories of patents, yet the legal frameworks of jurisdictions that have dealt with these legal issues appear to differentiate between them. This article examines the validity of distinguishing between these two groups of patented standards in relation to the legal principles that govern the availability of injunctive relief to their respective patent holders, using examples from the Korean and German legal frameworks to illustrate the bifurcated approach that has been taken towards determining the nature and extent of the legal limits which are placed on the patent holder’s freedom to seek patent injunctions.