The European Union isn't pleased with Motorola's stance on standard essential patents and has gone so far as to call the company's injunction against Apple an abusive act, and that Apple should be allowed to license the patents in question under reasonable terms. In a statement from the European Commission, which is investigating Motorola's actions, officials called the actions "an abuse of a dominant position prohibited by EU antitrust rules."
EU says Motorola is abusing its standard essential patents
The European Commission stated,
The Motorola Mobility SEPs in question relate to the European Telecommunications Standardisation Institute's (ETSI) GPRS standard, part of the GSM standard, which is a key industry standard for mobile and wireless communications. When this standard was adopted in Europe, Motorola Mobility gave a commitment that it would license the patents which it had declared essential to the standard on FRAND terms. Nevertheless, Motorola Mobility sought an injunction against Apple in Germany on the basis of a GPRS SEP and, after the injunction was granted, went on to enforce it, even when Apple had declared that it would be willing to be bound by a determination of the FRAND royalties by the German court.
The agency's preliminary ruling comes as part of an investigation into potential patent abuse on Motorola's part after the company won an infringement case against Apple in 2012 related to standard essential cell service patents. Apple was apparently willing to pay to license the patents so it wouldn't have to deal with ongoing litigation over how they are used in the iPhone and iPad, but Motorola refused despite their SEP status.
The European Commission added,
Today's Statement of Objections sets out the Commission's preliminary view that under the specific circumstances of this case - a previous commitment to license SEPs on FRAND terms and the agreement of Apple to accept a binding determination of the terms of a FRAND licence for SEPs by a third party - recourse to injunctions harms competition. The Commission is concerned that the threat of injunctions can distort licensing negotiations and lead to licensing terms that the licensee of the SEP would not have accepted absent this threat. This would lead to less consumer choice.
Motorola is currently dealing with two EU investigations into potential patent abuse over its refusal to license SEP technology to Apple and Microsoft despite both companies statements that they are willing to strike agreements.
The fact that Apple and Microsoft have both expressed a clear interest in strikingi licensing deals with Motorola doesn't bode well for the company, especially since the patents in question are standard essential. Depending on what the agency decides in its final ruling, Motorola could face fines that add up to "10 percent of [the] company's annual worldwide turnover."
Motorola hasn't commented on the preliminary ruling.