TV Subtitling Software Decision of the Council of State of Turkey 15 November 2022 – Case No. 2022/2966, Decision No. 2022/4240

• Published in: IIC - International Review of Intellectual Property and Competition Law Vol. 55; no. 3; pp. 485 - 493
• Format: Journal Article
• Language: English
• Published: Berlin/Heidelberg Springer Berlin Heidelberg 01.03.2024
• Subjects: Decision • Restraints of Competition; Intellectual Property; IT Law; Law; Law and Criminolgy; Media Law; Dominant position; License agreement; Patent infringement; Abuse of dominant position; Administrative fine; FRAND; Non-assertion of invalidity clause; Subtitling technology market; No-challenge clause; Negotiation failure; Digital video broadcasting; SEP
• ISSN: 0018-9855; 2195-0237
• DOI: 10.1007/s40319-024-01450-y

The ownership of an SEP by an undertaking is not sufficient in itself for the undertaking to be in a dominant position. A non-litigation clause is a contractual provision that prevents the licensee from questioning the validity of the patent. As terms added to an agreement by the licensor, these provisions are not binding on third parties. The licensee, as the alleged infringing party, should always be able to challenge the validity and essentiality of the relevant SEP, regardless of the outcome of the license negotiations. The patent holder’s actions to the contrary will constitute a violation of competition in the context of an abuse of a dominant position. The basic condition for the application of both the submission of undertaking and the settlement mechanisms is that an infringement has not yet been detected and the Competition Board enjoys discretionary power in this regard. Since a competition concern and an ongoing investigation cannot be mentioned in cases where an infringement has been detected, it is not possible to apply the new rule on commitment. When the investigation report has been notified and the existence and scope of the infringement has been determined by the Competition Board, it is not possible to apply the rules on conciliation on the grounds that it is a favorable regulation.