Compulsory licensing of standard-essential patents and injunctive relief as abuse of dominant position in violation of Article 102 TFEU

When a dominant undertaking holding a standard-essential patent uses its exclusive right to the IP to seek injunctions against those wishing to produce either de jure or de facto standard compliant products, it creates a conflict between the exclusive right to the use of the IP on the one hand and the possible abuse of dominance due to the exclusionary conduct on the other. The aim of the thesis is to focus on the issues concerning abuse of dominance in violation of Article 102 TFEU when the holder of the standard-essential patent seeks an injunction against a would-be licensee. The thesis is mainly based on the most recent ECJ case law in Huawei and the Commission’s recent decisions in Samsung and Motorola. The case law in Europe prior to those decisions was mainly focused on the German case law from Orange Book Standard which provided IP holders great leverage due to the almost automatic granting of injunctions against infringers. The ECJ in Huawei set out the requirements for when a de jure standard-essential patent holder would not be violating Article 102 TFEU when seeking an injunction, requiring that negotiations in good faith must take place prior to the seeking of the injunction and that all offers must comply with FRAND terms, thus limiting the scope of case law derived from Orange Book Standard in Germany. The ECJ chose not to follow all of the reasoning the Commission had laid out in Samsung and Motorola which provided a more licensee-friendly approach on the matter, but rather chose a compromise between the IP holder friendly German case law and the Commission’s decisions. However, the ECJ did not disclose how FRAND terms themselves should be interpreted, but rather left it for the national courts to decide. Furthermore, the thesis strongly argues that Huawei did not change the fact that only vertically integrated IP holders who have made a FRAND declaration are subject to the terms laid out in Huawei, thus leaving non-practicing entities such as patent trolls and entities that have not made a FRAND declaration outside its scope. The resulting conclusion from the thesis is that while the ECJ in Huawei presented new exceptional circumstances for when an IP holder could be abusing its dominant position when it seeks an injunction, it still left many more questions answered, such as the meaning of FRAND and whether deception in giving a FRAND declaration is prohibited under Article 102 TFEU or not.

Macroalgal Defenses Against Herbivory: Causes and Consequences of Intraspecific Variation

In marine benthic communities, herbivores consume a considerable proportion of primary producer biomass and, thus, generate selection for the evolution of resistance traits. According to the theory of plant defenses, resistance traits are costly to produce and, consequently, inducible resistance traits are adaptive in conditions of variable herbivory, while in conditions of constant/strong herbivory constitutive resistance traits are selected for. The evolution of resistance plasticity may be constrained by the costs of resistance or lack of genetic variation in resistance. Furthermore, resource allocation to induced resistance may be affected by higher trophic levels preying on herbivores. I studied the resistance to herbivory of a foundation species, the brown alga Fucus vesiculosus. By using factorial field experiments, I explored the effects of herbivores and fish predators on growth and resistance of the alga in two seasons. I explored genetic variation in and allocation costs of resistance traits as well as their chemical basis and their effects on herbivore performance. Using a field experiment I tested if induced resistance spreads via water-borne cues from one individual to another in relevant ecological conditions. I found that in the northern Baltic Sea F. vesiculosus communities, strength of three trophic interactions strongly vary among seasons. The highly synchronized summer reproduction of herbivores promoted their escape from the top-down control of fish predators in autumn. This resulted into large grazing losses in algal stands. In spring, herbivore densities were low and regulated by fish, which, thus,enhanced algal growth. The resistance of algae to herbivory increased with an increase in constitutive phlorotannin content. Furthermore, individuals adopted induced resistance when grazed and when exposed to water-borne cues originating from grazing of conspecific algae both in the laboratory and in field conditions. Induced resistance was adopted to a lesser extent in the presence of fish predators. The results in this thesis indicate that inducible resistance in F. vesiculosus is an adaptation to varying herbivory in the northern Baltic Sea. The costs of resistance and strong seasonality of herbivory have likely contributed to the evolution of this defense strategy. My findings also show that fish predators have positive cascading effects on F. vesiculosus which arise via reduced herbivory but possibly also through reduced resource allocation to resistance. I further found evidence that the spread of resistance via water-borne cues also occurs in ecologically realistic conditions in natural marine sublittoral. Thus, water-borne induction may enable macroalgae to cope with the strong grazing pressure characteristic of marine benthic communities. The results presented here show that seasonality can have pronounced effects on the biotic interactions in marine benthic communities and thereafter influence the evolution of resistance traits in primary producers.