On 21 December 2012, the European Commission sent a Statement of Objections (SO) to Samsung. The Commission's preliminary view is that Samsung abused its dominant position by seeking injuntive relief against Apple based on its mobile phone standard-essential patents (SEPs). The Commission takes the view that “under the specific circumstances of this case, where a commitment to license SEPs on [Fair Reasonable and Non-Discriminatory (FRAND)] terms has been given by Samsung, and where a potential licensee, in this case Apple, has shown itself to be willing to negotiate a FRAND licence for the SEPs, then recourse to injunctions harms competition.”
The Commission’s preliminary objections reflect the approach it took in Google/Motorola where it found that “[d]epending on the circumstances, it may be that the threat of injunction, the seeking of an injunction or indeed the actual enforcement of an injunction granted against a good faith potential licensee, may significantly impede effective competition by, for example, forcing the potential licensee into agreeing to potentially onerous licensing terms which it would otherwise not have agreed to.”
The Commission is thus of the opinion that seeking an injunction to enforce SEPs may be abusive when the injunction is sought against a ‘good faith’ potential licensee willing to negotiate a FRAND licence.
While the sending of this SO may appear surprising as it came a few days after Samsung decided to withdraw the injunctions that were at the source of the Commission investigation, the most likely explanation for this SO is that the Commission wants to establish a precedent allowing it to define the circumstances in which the injunctions in SEP-related patent litigation are acceptable from a competition law standpoint.