ABSTRACT

In India, FRAND licences involving SEPs (standard essential patents) evoke parallel proceedings before the High Court on patent infringement and anti-competitive practices complaint before the Competition Commission, confirming observations that stronger enforcement of patents would be countered with stronger competition laws. This pattern of responses is detected in technologies where patent holders allow their inventions to be used by downstream implementers with the prospect of collecting royalty, effectively making the technology domain amenable for FRAND licences. Apart from cases involving Ericsson’s SEPs, the patent law-competition law dichotomy manifested again in the case involving Monsanto’s patented GM (genetically modified) seeds. Downstream implementers – common to both SEPs and GM seeds – initiated actions under the competition laws as licensing terms hindering their usage were construed as an anti-competitive agreement and as an abuse of dominant position. While certain patent infringement cases can trigger relief under competition law, the patent holders frequently argue the ouster of jurisdiction of the Competition Commission resulting in a paradox: the availability of a relief in one domain becomes the reason for denying relief in another. Though the Delhi High Court in the Ericsson case held that Patents Act, 1970 and the Competition Act, 2002 are not mutually exclusive and that both can exist harmoniously, Monsanto, following a similar litigation pattern, has raised the same issue again before the same court, stating that the remedies provided under the Patents Act, 1970 will bar the jurisdiction of the Competition Commission under the Competition Act, 2002. Reconciling the remedies under the two acts and understanding the different legislative objectives will be crucial in deciding FRAND cases across technologies in the future.