Article 82, IP Rights and Industry Standards: In Reply

Damien Geradin, Howrey LLP; Tilburg University - Tilburg Law and Economics Center (TILEC), and Miguel Rato, Howrey LLP

10/14/2008
(Original Publish Date: 12/7/2006)

In a recently published article ("Article 82: Excessive pricing - An outline of the legal principles relating to excessive pricing and their future application in the field of IP rights and industry standards", Competition Law Insight, 4 July 2006, p. 3), Marcus Glader and Sune Chabert Larsen ("the authors") briefly reviewed the current legal standards for excessive pricing under article 82 EC. The authors then proposed a perfunctory framework under which those principles should be applied in the complex field of IP rights incorporated into industry standards. We disagree with the positions put forward by the authors, not least because they rest on several faulty premises regarding the economics of technology licensing, as well as on misunderstandings concerning the notion of licensing under Fair, Reasonable and Non-Discriminatory ("FRAND") terms in the standards development context, and its connection - if any - with Article 82 EC.