Samsung Faces Potential EU Antitrust Wrath For Failure To License Mobile Patents

A new wrinkle was just added to the ever expanding Apple-Samsung IP litigation drama. The European Commission has opened a formal investigation to determine whether the Korean firm breached EU antitrust rules.

Did Samsung break its promise to Europe?

At issue is whether “Samsung Electronics has abusively, and in contravention of a commitment it gave to the European Telecommunications Standards Institute (ETSI), used certain of its standard essential patent rights to distort competition in European mobile device markets . . .” In 1998 Samsung made a commitment to European regulators to license what were deemed basic mobile patents to competitors on “fair, reasonable and non- discriminatory terms” (aka “FRAND”).

According to the press release issued by the European Commission earlier today, “In 2011, Samsung sought injunctive relief in various Member States’ courts against competing mobile device makers based on alleged infringements of certain of its patent rights which it has declared essential to implement European mobile telephony standards.”

Apple is the unnamed “competing device maker”

While none of the defendants in those actions were expressly named, Apple is clearly the company in mind. Apple has complained in the past that Samsung was being unreasonable regarding IP licensing terms. However Apple’s hands may not be entirely clean here. The Cupertino company has been trying to block or slow Samsung’s handsets, which were second only to Apple’s iPhone in Q4 sales.

Indeed, Samsung is the most successful Android OEM. The company’s sales have boomed while HTC and Motorola have stumbled in recent quarters. For its part Motorola recently filed new patent claims against Apple (likely with Google’s blessing). The myriad, convoluted patent suits are essentially a proxy war between Apple and Google, which have yet to directly sue one another.

Will the parties find a way to reach Détente?

As part of that proxy war, Apple has claimed that Samsung’s Android devices (in particularly the Galaxy smartphones and tablets) “slavishly” copy Apple’s designs and violate its IP. Samsung has counter-sued and sought “injunctive relief” against Apple in various countries. Most recently Samsung failed in an effort in Germany to reverse a ban on Galaxy tablet sales in that country.

The whole arena of mobile IP is a mess. Perhaps the EU investigation will ultimately enable the various parties to find a way to cross-license basic patents and eliminate the majority of their litigation.