Why Samsung’s EU antitrust settlement proposal stinks

[Commentary] Europe’s antitrust chief said that Samsung had submitted proposals for settling its patent-related antitrust case, and now the European Commission has published them for a one-month public consultation. In a nutshell, Samsung has proposed not abusing its so-called standards-essential patents (SEPs) in the mobile arena for the next five years. The big problem with Samsung’s settlement proposal is its five-year term.

Now, this length of term is hardly unprecedented when it comes to antitrust settlements; for instance, the Microsoft’s browser-bundling anti-trust case in 2009. But the SEPs affair is quite different. It is not a matter of giving competitors their chance to shine; it is about letting those competitors play in the mobile space in the first place. And it’s not a situation that will fundamentally change in five years’ time. When Google settled with the US Federal Trade Commission (FTC) earlier in 2013 over its own SEPs antitrust case, the FTC didn’t say it would be OK for Google to go back to breaking its commitments after a set period of time. The European Commission should take a similarly long-sighted view, at least adding a proviso that would allow it to swiftly reinstate a harness on Samsung if it goes back to its bad old ways. The question there is which forum will suffice -- the International Telecommunications Union (ITU) has been moaning about SEPs abuse for ages, though it doesn’t really have the teeth to do something about it – but either way, someone needs to define what fair and reasonable really means, for once and for all. Nobody benefits from this mess but patent lawyers.