De WeiRegulations of Competition Law on SEP Related Abuse of Dominant Position

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The conflict and coordination between intellectual property law and competition law is a long-standing subject of discussion in both legal and economic fields. In the context of SEPs (standard essential patents), this conflict has been made more prominent and complicated. From an economic perspective, SEP holders are always motivated to exercise the market power brought about by standardization for unreasonably high license fees (holdup), which leads to market failure. Due to the necessity i.e., irreplaceability of SEP, the abuse of rights by its holders is easily associated with the “abuse of dominant market position” under competition laws.

The core issue as discussed in this dissertation is how to take advantage of competition law to restrict SEP holders from the abuse of this super exclusionary right, so as to reach a balance between the protection of intellectual property and the implementation of standardization, thus improving economic efficiency.

Chapter 1 “Market Power and SEP Holdup” lays the theoretical foundations for the SEP holdup based on game theory, so as to explore the patterns of SEP holdup and measure the power of holdup. Then, the characteristics of SEP holdup in the ICT Industry are illustrated to examine the impact of SEP holdup on public interests, so that the economic motivation for the regulation on SEP holdup can be demonstrated.
In Chapter 2 “Competition Law and Standard Antitrust Analysis Applies to SEPs”, a comparison is performed between different approaches to delineating the relevant market of SEPs and the market dominance of SEP holders is determined, so as to establish which approach should be taken in practice.
From Chapter 3 to Chapter 5 - Chapter 3 “Patent Ambush”; Chapter 4 “FRAND Royalty and Excessive Pricing”; Chapter 5 “Injunctive Relief”, a discussion is conducted about how to take advantage of competition law for the regulation on such abusive behaviors as patent ambush, excessive pricing and the abuse of injunctive relief.
Throughout Chapters 2, 3, 4 and 5, comparative law methodology is adopted to summarize, compare and evaluate the regulatory methods adopted in the U.S., the EU and China, with implications indicated at policy level.

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