Competition Law and Policy on Issues Relating to Standard Essential Patents

The relationship between competition law and IP law has been debated for a long time. Although there are some existing presumptive tensions between the two bodies of law when the exercise of IP rights (IPRs) conflicts with the goal of competition law, many believe that both laws have the same objective – to encourage innovation and improve competition, thereby maximising welfare in society. In particular, with the recent rapid globalisation, it has become important to understand different competition regimes in order not to infringe their competition rules, and this is especially true for multinational undertakings that exercise IPRs in the global market. In addition, over recent decades standardisation has become crucial in areas involving technology, and the issues arising from standard setting organisations (SSOs) and related topics, such as standard essential patents (SEPs) and fair, reasonable and non-discriminatory (FRAND) commitments, have led to theoretical and practical arguments in the field of competition law because the number of cases concerning this topic has increased noticeably in many competition jurisdictions. Furthermore, a comparative study of competition laws, focusing on the approaches in the United States, the European Union and Korea, may help to develop harmonised competition rules on this subject. In one particular case, the Korean competition authority, the Korea Fair Trade Commission (KFTC), has imposed a cease-and -desist order and a surcharge on Qualcomm for its abuse of market dominance and its unfair business practice. Considering the importance of new economy issues, this article aims at discussing recent developments in competition law and policy on IPRs as they relate to SSOs and the topics of SEPs and FRAND commitments.