Dominant Position in UK Law

Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.

Second, it is said that the refusal to grant a patent licence to VIA either at all or on lawful and/or reasonable terms is an abuse of a dominant position contrary to Article 82 and/or section 18, and Intel is not entitled to the relief sought by it in these proceedings.

Standing back, the question I have to decide is whether Unwired Planet is in a dominant position in the relevant market. The relevant market is a market for licences under the SEPs. It is a market in which the SEP owner has 100% market share. The market is covered by the FRAND undertaking which does weaken the SEP owner's position. It is a market in which licensees can engage in holding out and there is some evidence that they do, particularly given the relative weakness of Unwired Planet.

It is important to notice that it is the imposition of unfair prices, not high prices, which can constitute an abuse. All that is said is that the rates are fixed at 10% of the bookmaker's gross profit or 1.5% of the bookmaker's turnover, that the cost of preparing the Pre-Race Data is approximately £4 million per year and that BHB's total income from data licensing was stated in 2002 to be expected to amount to £600 million over 5 years, that is to say, about £120 million each year.

A breach of the duty imposed by Article 86 not to abuse a dominant position in the common market or in a substantial part of it, can thus be categorised in English law as a breach of a statutory duty that is imposed not only for the purpose of promoting the general economic prosperity of the common market but also for the benefit of private individuals to whom loss or damage is caused by a breach of that duty.

It is a feature of the way in which mobile telephone services work across different networks that several services are involved. These include the services of access, origination and termination. For present purposes the services of access and origination can be treated as providing a person with the ability to access a network and to originate a call from it.

It would be undesirable for me to refuse interim injunctive relief, if PML is otherwise entitled to it, simply on the footing that this point has been raised at such a late stage, particularly since it has been addressed in argument, albeit on the evidence presently before the court (which is not directly addressing this issue of alleged abuse of dominant position in the call origination market).