"This paper aims to discuss the misappropriation of patents in the context of Open Source Software (OSS) and Open Standards (OS), from a perspective of Intellectual Property and Competition law. Through the illustration of various examples in recent case law, we first contemplate on the potential threat that patent misuse may have in the OSS industry, as well as the various responses of the OSS community to this threat. Furthermore, we examine alternative legal defences against opportunistic patent enforcement. Our focus is not placed on the defences aiming against the validity of the patent, but instead, we reflect on the legal bases pursuant to which the opportunistic behaviour of the patentee may lead to the unenforceability of his patents, or be considered as an anti-competitive behaviour. In this context, we stress that the network dynamics in the software and IT-related markets should play an important role when evaluating the abuse of patent rights or of dominant behaviour. From a competition policy perspective, this tension between opportunistic rent-seeking and the industry’s drive towards royalty-free software and standards requires a careful balancing, so as to not undermine the legitimate right of the patent holder to benefit from his investment in R&D".The authors write of the FUD ('fear, uncertainty, doubt') factor which hovers over the OSS marketplace. Certainly, while the total volume of OSS patent-driven infringement litigation -- even in the United States -- is relatively slim, the threat of litigation is ever-present. Those companies with the biggest portfolios are simultaneously those best placed to sue and most worth suing.
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