CRA organised its annual Brussels conference on Wednesday. The number of attendees was amazing. It is true that the conference was free (which contrasts with the excessive fees that are charged for many other conferences), the line-up of speakers was impressive, and most importantly there was good food.
We attended the panel on patents and one of the speakers was Linsey McCallum (acting director at DG Comp). While she refused to comment on the ongoing investigations, she reiterated Vice-President Almunia's commitment to clarify the meaning ot FRAND and the circumstances in which standard-essential patents holders may seek injunctions.
Ms. McCallum referred to the Google/Motorola case where the Commission suggested that the threat of injunction, the seeking of an injunction or the actual enforcement of an injunction granted against a good faith potential licensee could significantly impede effective competition. Interestingly, she also noted that some were advocating a brighter line and referred in this context to the judgment in Motorola v. Apple where judge Posner supported a "no injunction" policy for standard-essential patents.
Ms. McCallum also commented on "commercially-essential patents". She explained that in cases involving commercially-essential patents, the appropriate framework of analysis was that developed in Magill, Bronner, IMS Health, Microsoft, etc. As the Microsoft case has shown, patents that are essential have to be licensed on (F)RAND terms (like standards-essential patents). According to Ms. McCallum, no complaint involving commercially-essential patents has been filed so far. The reason is probably that the burden of proof on the complainant is higher in cases involving commercially-essential patents than in cases involving standard-essential patents. While in the latter case the licensor committed to license on FRAND terms, in the former case it did not make such a commitment and an obligation to license on FRAND terms can only be imposed on the licensor if the complainant proves that the commercially-essential patents are essential within the meaning of the Bronner line of case-law.