The European Commission has asked Samsung for information on the enforcement of "standards-essential patents" in an effort to determine whether there are antitrust issues at play in the ongoing patent infringement battle between Samsung and Apple. In a recent article, GPC's Alexander Poltorak explains why this litigation is part and parcel of having patents - and why enforcement is the right of every patent owner.("Europe Weary of Apple, Samsung Patent War", TechNewsWorld.com, November 28, 2011)
Article Excerpt: Even if the battle between Apple and Samsung defies common corporate sense, both companies have a right to sue each other for perceived infringement, insisted Alexander Poltorak, chairman and CEO of the General Patent Corporation.
"As an exclusionary right, a patent is nothing but a license to sue," he told the E-Commerce Times.
"There is nothing anticompetitive per se in patent litigation," continued Poltorak. "The English Parliament, in its Statute of Monopolies of 1624, made a clear distinction between patents and monopolies, legislating that 'any declaration [against monopolies] shall not extend to any Letter Patents ... .' Moreover, as U.S. Supreme Court Justice Clifford wrote, 'patents are not to be regarded as monopolies ... but as public franchises ... .'
In short, a patent is not regarded as a monopoly because one cannot patent a problem -- say, a disease, Poltorak pointed out. Rather, one can only patent a specific solution to the problem, such as a particular drug that is used to treat the disease. Other solutions may be offered by competitors, such as different drugs to treat the disease.
There is one exception from this general rule: standard-essential patents that can prevent competitors from implementing any standard-compliant solution. However, neither company has asserted standard-essential patents in this case, Poltorak said.
Antitrust authorities can require the owner of standard-essential patents to offer them for licensing on FRAND (Fair, Reasonable and Non-Discriminatory) terms, he noted, but that is not applicable in this case.