Samsung in hot water with EU over 3G FRAND patent lawsuits

By Chris Foresman

Qualcomm licenses the 3G standards essential patents from Samsung 

to make the cellular radio chips Apple uses in its iPhone and iPad.

The European Commission announced on Tuesday that it has begun a formal investigation into Samsung's strategy of using FRAND-encumbered patents related to 3G wireless networking standards in lawsuits. The announcement comes after the Commission began a preliminary inquiry into the matter last November and several courts in the EU have struck down Samsung's attempts to use the patents against Apple.

Apple and Samsung's legal fight over smartphones and tablets began last April when Apple sued Samsung over various patent, trademark, and design right infringements. Samsung retaliated with patent infringement lawsuits of its own, many of which involved patents "essential" to 3G standards that Samsung committed to license on fair, reasonable, and non-discriminatory (FRAND) licensing terms.

Samsung apparently believed its 3G-related patents could be used as a legal bludgeon to pound over Apple's head. "[A]s long as Apple does not drop mobile telecommunications functions, it would be impossible for it to sell its i-branded products without using our patents," one Samsung executive told The Korea Times last September.

As we noted previously, however, courts have generally not looked kindly on attempts to use FRAND-encumbered patents in this way. We said Samsung's plan could backfire, and it appears that is happening now.

Samsung has attempted to extract injunctions barring Apple from selling iPhones and iPads in Australia, Germany, France, Italy, Japan, South Korea, UK, and US using FRAND-encumbered 3G patents. And so far, courts in EU member nations Germany, France, Italy, and The Netherlands have rejected Samsung's requests for injunctions related to these patents.

The European Commission began an inquiry into the issue in November. That inquiry has now been upgraded to a full-blown investigation to "assess 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 breach of EU antitrust rules," according to a Commission statement.

Standards organizations like ETSI require companies that offer up patented technology to become part of a standard to agree to license those patents to anyone that uses the standard on FRAND terms. "This commitment serves to ensure effective access to the standardised technology," the Commission said. "In order to guarantee undistorted competition and to reap the positive economic effects of standardisation it is important that FRAND commitments be fully honoured."

For its part, Apple has argued that Samsung made no attempt to offer a fair or reasonable licensing agreement. Furthermore, Apple also claims that licensing agreements between Samsung and Qualcomm, which produces the 3G chips used in the iPhone and iPad, already cover Apple's use of the technology.

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