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European Commission investigating Samsung over abuse of FRAND patents against Apple

According to legal documents filed by Apple in its California patent dispute with Samsung, the European Commission is investigating Samsung's patent litigation to determine if its use of standards-essential patents violates competition laws.

A report by Florian Mueller of FOSS Patents notes that Apple has complained in California legal documents that Samsung is trying "to coerce Apple into tolerating Samsung's imitation" through a series of counterclaims involving FRAND patents.

While Apple has sued Samsung over the infringement of its proprietary design and technology patents, Samsung's own patent claims and counterclaims against Apple are largely based upon patents Samsung holds that have been committed to "Fair, Reasonable And NonDiscriminatory" licensing terms.

Because these FRAND licensed patents have been "declared essential" in implementing open industry standards such as 3G and WiFi, a vendor's attempt to use them as leverage against a specific competitor would be considered anti-competitive, because it creates a monopoly within what is supposed to be openly interoperable standard.

Samsung is among the companies that were granted antitrust clearance in the EU to work together to develop 3G technologies, with the understanding that their pooled technologies could not be used to thwart competition in the industry.

Apple itself holds FRAND licensed patents tied to web, video and other technologies that it similarly has committed not to use as weapons to prevent competition. In general, FRAND patents are only useful for collecting prearranged royalties, and can not be used to stop a single competitor from participating in an open industry standard.

But that's exactly what Apple accuses Samsung of trying to do, stating, "Samsung has launched an aggressive, worldwide campaign to enjoin Apple from allegedly practicing Samsung's patents. Samsung has sued Apple for infringement and injunctions in no fewer than eight countries outside the United States.

"Indeed, Samsung's litigation campaign and other conduct related to its Declared-Essential Patents is so egregious that the European Commission recently has opened an investigation to determine whether Samsung's behavior violates EU competition laws.

"Apple brings these Counterclaims In Reply to halt Samsung's abuse and protect consumers, the wireless telecommunications industry, and Apple from further injury."

Mueller notes that the European Commission's Directorate-General for Competition has not announced its new investigation against Samsung, saying that Apple's allusion to the investigation is the first public notice of the action.

Previously, the DG COMP has imposed major fines and other remedies against both Microsoft and Intel for activities the agency decreed toxic to free market competition.

Openly phony

Last year, Google waged a war against MPEG-LA and the open, FRAND-licensed H.264 video standards, complaining that the technologies weren't completely free for everyone to implement.

However, Google is now actively supporting its Android licensees, including Samsung, Motorola Mobility and HTC, all of whom are using FRAND-licensed patents as weapons to prevent not just a free implementation of wireless technologies like 3G and WiFi, but actually attempting to block Apple from being able to pay to license the patents in order to implement open standards.

Apple previously complained about attempts by Motorola and Samsung to monopolize markets with FRAND patents, saying the companies are deceptively monopolizing markets to "harm or eliminate competition."