Unwired v Huawei [2017] EWHC 711 (Pat)

This judgment – which you can find here – is a recent UK court decision on FRAND terms. The factual background to this decision is convoluted (including five “technical” trials relating to the validity and infringement/essentiality of the relevant patents, which preceded the present trial regarding all competition law and FRAND issues), but the situation can be summarised shortly. Unwired Planet is a company that owns a number of worldwide patents, including many of the foundational technologies that allow mobile devices to connect to the Internet (4G, 3G and the like) – most of the relevant portfolio in this case was acquired from Ericsson. A number of these patents are essential to the relevant technical standards, and are thus deemed Standards Essential Patents (“SEPs”). The process of standardisation involves holders of patents which are essential to an international telecommunications standard declaring them to be essential to the relevant standards body –  in this case, the European  Telecommunications Standards Institute (“ETSI”). Standard…

Douglas Ginsburg, Koren Wong-Ewing and Joshua Wright ‘The Troubling Use of Antitrust to Regulate FRAND Licensing’ CPI Antitrust Chronicle October 2015 (1)

This paper – which can be found here – criticises the use of “antitrust sanctions on holders of standard essential patents (“SEPs”) for seeking injunctive relief against alleged infringers and for reneging on their commitment to license their patents on fair, reasonable, and non-discriminatory (“FRAND”) terms”.  They make two main criticisms of the use of antitrust to regulate FRAND licensing: First, they criticise the assumption, underpinning these developments, that patent “holdup” is a widespread problem that leads to significantly adverse consequences for competition and innovation. Instead, they argue that: (i) there is no empirical support for this assumption. On the contrary, sectors where SEPs are preponderant are among the most competitive ones around; (ii) as economic theory would predict, patent holders and those seeking to license and implement patented technologies write their contracts so as to minimize the probability of holdup; (iii) several mechanisms – including reputation and business costs – are available to transactors to mitigate the incidence and likelihood…

Pierre Larouche and Nicolo Zingales ‘Injunctive Relief in FRAND Disputes in the EU – Intellectual Property and Competition Law at the Remedies Stage’ in The Cambridge Handbook of Technical Standardization Law: Competition, Antitrust, and Patents (CUP, 2017) 406

This paper – which you can find here – asks: what does (EU) competition law have to do with FRAND? It is, as far as I’m concerned, a rather good question. The paper begins by sketching a basic model of standards-related IP licensing negotiations and related litigation. Competition issues tend to arise when two parties are negotiating over the licensing of a SEP and the SEP holder is under an obligation to grant licenses on fair, reasonable and non-discriminatory (FRAND) terms. This negotiation is framed by the parties’ ability to start judicial proceedings under IP Law: SEP holders can ask for injunctions in order to enforce their rights, while potential licensees can challenge the validity, infringement or essentiality of a SEP. A number of outcomes are possible in this context: (i) the parties may negotiate on the terms; (ii) the SEP holder may rely on its market power to holdup the licensee in order to obtain exorbitant royalties; (iii) the potential…

Orla Lynskey ‘Regulating ‘Platform Power” LSE Law, Society and Economy Working Papers 1/2017

This paper – which can be found here – is not strictly about competition, but has a wider regulatory focus. Its main arguments are that: (i) the term ‘platform power’ fails to reflect the potentially problematic power at the heart of the information society. Focus should therefore shift from this concept to the identification of concerns raised by the practices of Internet intermediaries; (ii) blind spots exist when the issue of ‘platform power’ is viewed solely through an economic lens. As a result, competition law fails to capture and sanction practices that negatively impact upon non-economic parameters, such as freedom of expression and privacy. The argument about platform power is made out in Section 2, and it is broken down into three different elements: The initial focus of the argument is on the EU’s attempts to address developments in the digital sphere, and in particular on the European Commission’s Digital Market strategy. The various meanings given in Europe to “platforms”…

Tim Wu ‘Blind Spot: The Attention Economy and the Law’ (2017) Concurrences

This paper – which can be found here – seeks to address an imbalance: while it “has become commonplace, especially in the media and technology industries, to speak of an “attention economy” and of competition in “attention markets” (…)the study of “attention markets” has only very recently become of interest to legal scholars, and only in connection with specific cases (…)”. This paper is “an effort to close that gap, and show why a better understanding of attentional markets will be critical to addressing pressing legal issues, such as antitrust’s treatment of the high technology industry and emerging public policy questions surrounding the “theft” of attention from captive audiences.” The fulcrum of the analysis is the “attention broker” – someone who “attracts attention by offering something to the public and then reselling that attention to advertisers for cash”, such as Google, Facebook or, more prosaically, TV channels and free subway newspapers. The author contends that the concept of “Attention Brokers”…

Jens Prufer and Christoph Schottmüller ‘Competition with Big Data’ CentER Discussion Paper 2017-007

This working paper – which can be found here – attempts “to better understand data-driven markets: i.e. markets where the cost of quality production is decreasing in the amount of machine-generated data about user preferences or characteristics (henceforth: user information), which is an inseparable by-product of using services offered in such markets”. The authors start from the assumption that data-driven markets are characterized by imperfect competition and subject to indirect network effects. In the light of this, they try to determine: (a) under which conditions a duopoly can be a stable market structure in a data-driven market; (b) when the propensity to market tipping (i.e. to monopolization) becomes overpowering; (c) the conditions that allow a dominant company in one data-driven market to leverage its position into another market. The paper begins, at least implicitly, by distinguishing between indirect network effects (which mix supply and demand effects. They occur where increased demand leads to decreasing costs in obtaining a product input – in…

Giuseppe Colangelo and Mariateresa Maggiolino ‘Data Protection in Attention Markets: Protecting Privacy through Competition?’ (2017) 8(6) 363

This paper – which you can find here – asks whether it is possible to protect privacy through competition. The paper begins from the observation that we are witnessing the advent of many businesses dedicated to offer zero-price services in exchange for advertising revenues and data. While not completely new – old media companies had similar business models –, these new businesses benefit from “new” digital technologies to collect, store and analyse huge amounts of users’ data. Thus, it is unsurprising that user data are now conceptualized as the currency for the many services and products that users find on the Internet at zero-price. Given this, the question the authors seek to address is “whether and how EU competition law could be enforced as a substitute of EU data protection law.” At this point, I must ask you to moderate your screams of “sacrilege”, appropriate as they may be for the festive season, and give the article a chance. The paper and its…

Wolfgang Kerber ‘Digital markets, data, and privacy: competition law, consumer law and data protection'(2016) Journal of Intellectual Property Law & Practice 11(11) 856

This is a paper on the economics of privacy that focuses more specifically on the role of privacy in competition law assessments. It can be found here. The paper claims that it is not sufficient to design policy solutions focused on a single field of the law, e.g. competition law or data protection law. Rather, an integrated approach that takes into account different regulatory perspectives is necessary. This paper identifies competition policy, consumer policy, and data protection policy as the three main regulatory perspectives that must be taken into account in order to adequately address privacy concerns. Each area of the law is reviewed in turn, from an economic perspective, in an attempt to discern how policies might remedy market failures concerning privacy rights and how a more integrated regulatory approach can be developed. The paper is structured as follows: Section II provides a brief overview of the economics of privacy. It begins by noting (in line with the article…

Alessandro Acquisti, Curtis Taylor, and Liad Wagman ‘The Economics of Privacy’ (2016) Journal of Economic Literature 54(2) 442

This article – which can be found here – summarises theoretical and empirical research on the economics of privacy. It focuses on the economic value and consequences of protecting and disclosing personal information, and on consumers’ understanding and decisions regarding the trade-offs associated with the privacy and the sharing of personal data. Their starting point is that the economics of privacy is a branch of information economics. Economists’ interest in privacy has primarily focused on its informational dimension: the trade-offs arising from protecting or sharing of personal data. At its core, the economics of privacy concerns the trade-offs associated with the balancing of public and private spheres between individuals, organizations, and governments. In this regard, the authors identify a number of important characteristics of privacy and personal information as economic goods: First, the value of keeping some personal information protected, and the value of it being known, are almost entirely context-dependent and contingent on essentially uncertain combinations of states of…

Darren S. Tucker ‘The Proper Role of Privacy in Merger Review’ CPI Antitrust Chronicle May 2015 (2)

This is  a (short) paper on the proper role of privacy in merger review, which can be found here. While focusing mainly on the US (where there have “been increasing calls for the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) to consider the potential loss of consumer privacy as a factor in their merger reviews and to challenge mergers of firms with large stores of personal data that otherwise pose no apparent competitive issues”), it could be read more generally. The argument in this paper is quite straightforward: the law is clear that non-competition factors – such as standalone consumer concerns – cannot be considered in antitrust analysis. Further, the law seems to be on sound policy grounds. The paper begins by arguing that there are good reasons why privacy should not be applied as a competitive parameter. First, there are a variety of concepts of privacy, and it is unclear which one should be applied. Secondly,…