Competition and Antitrust Enforcement Against Standard Essential Patents in India

• Published date: 01 September 2017
• Date: 01 September 2017
• Author: Samir Gandhi,Shivanghi Sukumar
• DOI: 10.1177/0003603X17718679

Article
The Antitrust Bulletin
2017, Vol. 62(3) 447-452
Competition and Antitrust
ª The Author(s) 2017
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DOI: 10.1177/0003603X17718679
Essential Patents in India
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Samir Gandhi* and Shivanghi Sukumar*
Abstract
Competition authorities and courts across the world have assessed issues at the interface between
competition law and intellectual property rights. India is no longer a stranger to this debate and has
witnessed the initiation of multiple proceedings involving the exercise of standard essential patents.
Further, a long-pending jurisdictional conflict has now been resolved by a court decision, paving the
way for the Indian competition authority and courts to concurrently examine the exercise of
standard essential patents. While these developments represent a step in the evolution of antitrust
jurisprudence in India, several foundational issues in relation to the competition enforcement against
standard essential patents are yet to be decided.
Keywords
competition, intellectual property rights, antitrust enforcement, standard essential patent, FRAND,
royalty, abuse
Competition law authorities and courts across the world are increasingly being called upon to address
issues at the cross-section of intellectual property rights and competition law. India is no longer a
stranger to this debate. Despite the lack of a comprehensive body of Indian antitrust jurisprudence, the
Indian competition authority, the Competition Commission of India (CCI), has chosen to deal with
several complex issues currently facing other antitrust agencies around the world. The antitrust
enforcement against standard-essential patents (SEPs) in India is one such issue, and the CCI is
addressing the first set of complaints ever filed in relation to abuse of dominant position by a SEP
owner on account of violation of Fair, Reasonable and Non-Discrimination (FRAND) commitments.
Further, a long-pending jurisdictional conflict has now been resolved by a court decision, paving the
way for the CCI to examine abuse of dominance claims in relation to the conduct of SEP owners.
While these developments represent a step in the evolution of antitrust jurisprudence in SEP and
FRAND-related issues in India, several foundational issues in relation to the competition enforcement
against SEPs are yet to be decided.
*AZB & Partners, Noida, India
Corresponding Author:
Samir Gandhi, AZB & Partners, A-8, Sector 4, Noida, Uttar Pradesh, 201301, India.
Email: samir.gandhi@azbpartners.com

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448
The Antitrust Bulletin 62(3)
This article provides an overview of the debate in relation to the competition enforcement against
SEPs in India and seeks to examine the extent to which the principles contained in the Competition
Act, 2002 (Competition Act) can be used to scrutinize FRAND terms and the exercise of SEPs. In Part
I, we discuss the context in which FRAND jurisprudence is emerging in India. In Part II, we outline the
proceedings involving SEPs before courts and competition authorities. Part III explains the jurisdic-
tional concerns that arise in the assessment of SEPs in India, and Part IV discusses substantive issues
that may arise in the assessment of SEPs under Indian competition law. Concluding remarks are
contained in Part V.
I. The Context of FRAND Jurisprudence in India
The telecommunications sector has dramatically transformed on account of liberalization, and India is
currently the second-largest telecommunication market in the world.1 The mobile telecommunications
sector’s exponential growth is attributable, in part, to several policy initiatives of the Government of
India encouraging investment in this sector. In 2014 and 2015, the Government’s ‘Make in India’ and
‘Digital India’ campaigns underlined India’s interest in focusing on technological innovation.
Notably, several domestic mobile handset-manufacturing companies—those that implement tele-
communication standards (Implementers)—are based in India. In examining issues impacting the
telecommunications sector, it is necessary for India to balance the interests of all stakeholders in the
telecommunications industry. More specifically, the development of jurisprudence ought to take into
account the interests of Implementers as well as SEP owners, whose research and development (R&D)
investments contribute to the technology underlying mobile telecommunications. The Department of
Industrial Policy and Promotion—a government body...