As we reported yesterday, Samsung was dealt a blow in the German courts under their competition law. Whilst Apple gains from the injunction against Samsung’s selling the Galaxy Tab 10.1, the revised tablet, the Galaxy Tab 10.1N, may also be halted from additional sales, all stemming from Samsung’s use of FRAND patents, those essential to wireless communications.

The European Commission (EC) opened a formal investigation yesterday into the FRANDS patent use issue after conducting a months-long informal investigation. Patent analysts have speculated that Apple, having lost several rounds against Samsung in German courts regarding alleged patents violations, casually or informally complained about FRAND patents, prompting the escalation of the EC’s investigation.

The Commission’s press release read:

“The European Commission has opened a formal investigation to assess whether Samsung Electronics has abusively, and in contravention of a commitment it gave to the European Telecommunications Standards Institute (ETSI), used certain of its standard essential patent rights to distort competition in European mobile device markets, in breach of EU antitrust rules. The opening of proceedings means that the Commission will examine the case as a matter of priority.”

Both Apple and Samsung returned EC questionnaires whose responses evidently prompted uncertainty in large enough proportions to formally investigate the matter of useage.

Samsung lost two recent rounds to bar the sales of iPhones in Germany and in the Netherlands, both from reported failure to follow through on a FRAND patent licensing commitment.

FRAND is an acronym for

“fair, reasonable and non-descriminatory,”

…and Samsung had committed to FRAND licensing of some of its patents in the European theatre. Apple’s claim in Samsung’s patents countersuits revolves around Apple’s assertion that Apple is entitled to use FRAND patents under Samsung’s agreement.

Samsung asserts that the patents Apple allegedly violated are not included in the FRAND agreement but are standard patents and, therefore, subject to additional licensing fees.

The European Commission will be evaluating the possibility of manipulation of FRAND patents to limit or prohibit fair competition in the European theatre. Speculation arises that if Samsung is found to be unfairly manipulating patent categorisation, many patent-related suits would be found in favour of Apple in several jurisdictions in and out of the European Union.