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The escalating patents war between Samsung and Apple has taken a very interesting turn, with the European Commission opening a formal investigation into whether the Korean firm has abused its huge IPR position to "distort competition in European mobile device markets".

The probe has entered a formal stage unusually quickly, only four months after the EC said it was carrying our preliminary investigations, probably in response to complaints from rivals. It does not relate directly to the 30-something IPR lawsuits ongoing between the top two smartphone makers, and the EC's interest will not be in infringement, but whether Samsung is using its large store of patents, especially those considered to be essential to wireless standards, unfairly.

Standards-essential patents need to be licensed on a 'Frand' (fair reasonable and non-discriminatory) basis, and the Commission would usually act if it believed a company was refusing to license such IPR to certain competitors, or doing so in an inconsistent manner which could distort the market.

The EC said in November that it had asked for information from both Samsung and Apple over their use of patents and "the enforcement of standards-essential patents in the mobile telephony sector". Some analysts and investors are increasingly critical of Apple's patents strategies because it is seen to be deploying its IPR aggressively, not to win deserved licensing fees, but to seek injunctions against products which threaten its iDevices, such as Samsung's Galaxy family. However, Apple is less vulnerable to EC-type probes, because few of its patents are fundamental to mobile standards.

By contrast, Samsung has hit back against its rival, and also acted against other competitors, by citing patent rights declared essential to the implementation of "European mobile telephony standards". According to the EC, it will now assess whether the Korean giant has behaved "abusively, and in contravention of a commitment it gave the ETSI" in 1998, to license on Frand terms. The Commission said it would "examine the case as a matter of priority", but that it "does not prejudge the outcome of the investigation".

The EC has sharpened its focus on how IPR is being used competitively, especially in light of the rising tide of litigation and M&A in wireless, and other worlds, in 2011. Antitrust Commissioner Joaquin Almunia said at the end of last year that he wanted to ensure patents were not used to block rivals' expansion and he is already investigating two chemical industry giants, Honeywell International and DuPont.

Meanwhile, in its fights in the law courts, Samsung has lost the latest round in its tit-for-tat battle with Apple. It has lost an appeal against a German injunction against its Galaxy Tab 10.1. The Higher Regional Court in Dusseldorf has upheld the ban, with Judge Wilhelm Berneke commenting: "Samsung wrongfully takes advantage of the enormous reputation and prestige of the iPad. Samsung unfairly imitates the iPad with its tablet." Apple has lost similar cases in The Netherlands, Australia and California, however. Samsung said the new German ruling was irrelevant because it has since launched the Galaxy Tab 10.1N, a reworked design which aims to get round the injunction. This is the subject of a separate suit from Apple, which is currently being reviewed by a lower court in Dusseldorf. However, the new judgement also applies to the Galaxy Tab 8.9.

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