Adv. Maitrayae Sadhu, Bar Council of West Bengal
ABSTRACT
Today the world is running through the Information and Communication Technology (ICT) and with the pace of globalization it has got more smooth running all over the world. Because of the flourished market the invention and innovation both are encouraged and regulated by setting a standard in which the invention should be patented and will be further applied in the industry. This is done for the benefits of the consumers for better interoperability and interconnectivity. However, it becomes detrimental to the public itself in a different way. The licensor got the dominant position when he got the standard mark on his patent (hold up) and the prospective licensee has any or another way becomes bound to use this patent to sustain in the market (locked in). To curb the unreasonable situation, it is one of the criteria of SEP that it should be encumbered by FRAND terms while giving a license. Now, the problem arises, considering the dominant position of the SEP holders, when they have agreed to give license in FRAND terms, would they be allowed to grant an injunction against any licensee in case of infringement or not. Because there is a high chance of misuse of the dominant position and on the other side there may be a possibility of hold out. The researcher analyses in this paper the concept of the SEP, SSO, FRAND to create the premise to explain why the injunctive relief is a debatable topic. After that the researcher will throw some light on how the theory of injunctive relief has changed with time and somewhat depending upon the behavioral approach of the litigants in various jurisdictions especially in the US, EU, India. Doing so, the researcher will be concluded by a possible suggestive framework for India by considering the scenario prevailing in other jurisdictions.
