Restoring the promise of competition: ex ante pro-competitive regulation of FRAND access to SEPs

ABSTRACT Overseeing digital gatekeepers through ex post competition law is too slow and too complicated to prevent serious exclusionary and exploitative harm. To provide greater contestability and fairness in digital markets, new European laws introduce complementary ex ante pro-competitive regulation. Differing forms of intellectual property innovation are crucial for the increasing digitization of markets, particularly involving the Internet of Things. When intellectual property “gatekeepers” thwart willing implementers’ access to standards by seeking injunctions, ex post competition law enforcement is too slow and complicated to prevent serious exclusionary and exploitative harm. Ex ante regulation could ensure re-instatement of the pro-competitive promise of FRAND access that ensures fair, contestable and innovative markets.