The application of antitrust principles to SEP/FRAND disputes: Anticompetitive exploitative and exclusionary conduct - And what about anti-suit injunctions?

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As the dissemination of 5G and other standard essential technologies becomes more important and traditional intellectual property licensing models are increasingly criticised, the importance of competition law principles in SEP/FRAND disputes is also likely to increase. This applies to conduct that may be qualified as exclu-sionary, as well as exploitative within the meaning of Article 102 TFEU. This contribution provides a tour d’horizon. While excessive and discriminatory pricing claims continue to raise a number of evidentiary hurdles, the area where we may expect most developments is the field of exclusionary conduct involving SEPs. This applies both to the question of whether end-level licensing may be qualified as an abusive refusal to deal, and to the question whether the strategic use of ASIs may be objectionable under the ITT/ Promedia standard for anticompetitive vexatious litigation, or may otherwise infringe Article 102 TFEU.