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66

Legal Focus

JUNE 2012

Competition Law France

Competition concerns are huge part of modern business and require sound legal advice to navigate the many potential pitfalls that can arise. A recent competition-related story is the news that the European Competition Commission has launched an investigation to determine if Motorola Mobility has unfairly restricted the use of standard-essential patents by competitors. To find out more about this, and other issues surrounding competition law, Lawyer Monthly speaks to Jacques-Philippe Gunther, Partner at the Paris office of law firm, Willkie Farr & Gallagher.

Please introduce your firm.

Willkie Farr & Gallagher LLP has approximately 600 attorneys practicing in offices strategically located in many of the world's most prominent marketplaces: New York, Washington, D.C., Paris, London, Milan, Rome, Frankfurt and Brussels. Willkie Paris, which opened in 1921, has approximately 65 lawyers. The Paris office’s main areas of expertise include: Mergers and Acquisitions, Tender Offers, Private Equity, Capital Markets, Competition and Antitrust, Business Reorganization and Restructuring, Debt and Project Finance, Tax, Litigation, International Arbitration, Public and Administrative Law and Environment.

The antitrust team of Willkie Farr & Gallagher is one of the most prominent practices in Europe. Headed by myself, the team consists of about 20 lawyers with two additional partners: David Tayar in Paris and Charlotte Breuvart in Brussels.

We have a significant experience in a broad range of competition law issues in different economic sectors including merger control, litigation on restrictive agreements and abuses of dominant position before EU and French Competition authorities and courts, and state aids.

In response to complaints from apple and Microsoft and to offer clarity regarding the issue of essential patents, the European competition commission has launched an investigation to determine if Motorola Mobility has unfairly restricted the use of standard- essential patents by competitors. What are your opinions on this?

This case concerns companies – Apple, Microsoft and Motorola Mobility (whose

acquisition by Google has been cleared by the European Commission on February 13, 2012) – operating in the information technology business where interoperability is a key consideration. If rules set by SSOs and commended by European Competition Law are disregarded by companies which hold IP rights essential to market access, then companies will find no incentive in participating to a standardization process unable to satisfy its goal of industry-wide product improvement and development. Should an SSO not be trustworthy on its ability to enforce its own rules concerning members’ obligations (i) to disclose patents and patent applications that may become essential to standards under development, (ii) to acknowledge the essentiality of such patents or patent applications to the implementation of the standards, and (iii) to commit to license their technology on FRAND terms, industry stakeholders would stop participating to it. This would in turn mean that companies operating in technology intensive sectors would have to carry their R&D efforts on their own. In such circumstances, only companies already particularly powerful would be able to further their R&D projects, which in turn would lessen competition on the market. In addition and, in any case, given the extensive time and investments necessary to improve or develop new products and the absence of economies of scale and output limitation resulting from the coexistence of several standards, innovation as a whole would be significantly harmed. As a consequence, customers’ access to improved and new products would be delayed while prices would be in any case higher than those which would have resulted from a successful standardization process.

How does antitrust compliancy affect local and foreign businesses?

Antitrust rules are different from one legal system to another. An obvious illustration is provided by

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