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02 November 2020
The debate over determining a legal framework for the enforcement of standard essential patents (SEPs) has been one of the hot IP topics of 2020. The German Federal Supreme Court's recent ruling on fair, reasonable and non-discriminatory (FRAND) rules for SEPs in Sisvel v Haier, which was based on the European Court of Justice's (ECJ's) landmark Huawei v ZTE ruling, has brought new dimensions to the debate; however, the discussion is far from over.
Turkey started discussing the licensing of SEPs following a decision by the Turkish Competition Authority at the end of 2019, in which the authority referred for the first time to FRAND terms regarding patented technology. The Competition Board decided on the SEP dispute regarding FRAND-compliant SEP licences at the end of 2019 and issued its decision at the beginning of 2020. The decision complies with EU legislation and the board is likely to have chosen one of the approaches employed in EU jurisprudence for its analysis.
The board issued no rulings concerning SEPs before the 2019 decision. However, it had previously issued a decision concerning the standardisation of a technology in Yonga Levha (Competition Board 03-56/650-298, 14 August 2003). This decision is an example of the conflict between technical standardisation and antitrust regulations in Turkey. It addressed potential anti-competitive conduct among competitors which had changed technical standards in the particle board and chipboard sector. While an evaluation of discriminatory behaviour by the collaborators was made during the investigations, the case does not refer to SEP licences or FRAND terms in depth.
In the recent Competition Board decision, the board decided that the SEP owner had breached competition law on the grounds of abuse of its dominant position in the relevant market because, among other things:
Correlations between IP and competition law and anti-competitive behaviour concerning IP litigation and transactions were discussed in the board's reasoning with respect to the economic valuation test and FRAND principles. The board also referred to Huawei and relevant ECJ case law in its decision.
This recent decision is important in constituting a landmark decision concerning SEP licensing by the board and is likely to be considered as a reference in upcoming SEP disputes.
For further information on this topic please contact Okan Can at Deris Attorney At Law Partnership by telephone (+90 212 252 6122) or email (email@example.com). The Deris Attorney At Law Partnership website can be accessed at www.deris.com.tr.
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