The European Commission (EC) has opened two formal
antitrust investigations against Motorola Mobility Inc.,
investigating whether the phone maker breached antitrust
rules by allegedly over-charging Microsoft and Apple for
use of its patents in their products.
The EC will assess whether Motorola has abusively, and in
contravention of commitments it gave to standard setting
organisations, used certain of its standard essential
patents to distort competition in the Internal Market in
breach of EU antitrust rules.
Following complaints by Apple and Microsoft, the
Commission will investigate whether by seeking and
enforcing injunctions against Apple's and Microsoft's
flagship products such as iPhone, iPad, Windows and Xbox
on the basis of patents it had declared essential to
produce standard-compliant products, Motorola "has failed
to honour its irrevocable commitments made to standard
setting organisations." In these commitments, Motorola
engaged to license those standard-essential patents on
fair, reasonable and non-discriminatory (FRAND) terms.
In addition, the Commission will also assess the
allegation by both Apple and Microsoft that Motorola
offered unfair licensing conditions for its
In line with the Commission's guidelines on horizontal
cooperation agreements, standard setting organisations
require the owners of patents that are essential for the
implementation of a standard to commit to license these
patents on fair reasonable and non-discriminatory
("FRAND") terms. This commitment serves to ensure
effective access to standardised technology.
Motorola gave such FRAND commitments to the relevant
standard setting organisations, when the second and third
generation ("2G" and "3G") mobile and wireless
telecommunications system standards, the H.264 video
compression standard and the standards for wireless local
area network (WLAN) technologies were adopted.
In order to guarantee undistorted competition and to reap
the positive economic effects of standardisation it is
important that FRAND commitments be fully honoured by the
On 30 January 2012, the EC has opened proceedings against
Samsung in order to investigate whether Samsung has
failed to honour a FRAND commitment in licensing
negotiations, including by seeking injunctive relief
before the courts of certain Member States in relation to
standard essential patents.
On 13 February 2012, the Commission approved the
acquisition of Motorola Mobility by Google, without
prejudice to potential antitrust concerns related to the
use of standard essential patents.