Buyer Power and Power Buyers in Cellular SEP Licensing: Are there implications for Competition?

While European Competition Law has guided the development of ETSI standards since the outset, competition law concerns in the licensing of SEPs related to these standards have focused on the potential for hold up of patent implementers by patent owners.  The thinking has been that the standard-setting process eliminates competition in relevant markets defined around each patent holders’ technology (or technologies). Lately, the problem of hold-out by implementers has also received some policymaking and academic attention.  However, hold out is often discussed in terms of tactics such as litigation and delays in licensing.  Little attention, so far, has been paid to potential competition concerns arising with holdout.  The non-self-enforcing nature of patent rights, the licensor’s constraints under FRAND and the framework governing the availability of injunctive relief for SEPs, are all factors that could tilt bargaining power towards implementers, although they have often been overlooked in traditional discussions of the licensing marketplace.  The question we ask is whether hold-out has an antitrust or competition policy dimension to it.  

Although, in theory, there is no elimination of competition as a result of standard-setting and there are multiple buyers for each portfolio, we consider whether individual “power buyers” wield particularly great levels of bargaining power and can influence marketplace licence outcomes.  We consider factors such as the licensors’ financial dependency on particular buyers, the “validation effect” of licences with certain buyers, and the impact of the exercise of bargaining power in one negotiation on subsequent negotiations of the licensor and licensee alike.  We consider whether the impact is akin to that of monopsony power, i.e., restricting output in the licensing marketplace and depressing licensors’ reward to below FRAND levels.  We consider the impact on innovation in SEPs of any potential monopsony power, and whether future innovative activity in ETSI might be distorted in favour of vertically integrated firms.  Finally, we also briefly consider whether competition law is an effective way to tackle the issues we identify.