Rini Morison, Amity Law School, Noida
In the past two decades there has been a boom in the consumer electronics market in India, particularly in relation to telecoms. The government has been giving special attention to this sector to help extend its e-governance programmes in remote areas and to connect communities for direct benefit programmes, as well as to provide health, education, financial and information services. Since the consumer electronics industry, and particularly telecoms equipment and mobile devices, require inter-operability, there is a growing need for standardising technologies. This allows multiple manufacturers to enter the market with compatible devices, and standardisation boosts fair competition.
Further, issues emanating from implementation of standards in consumer electronic devices also became common in the industry. Several cases pertaining to standard essential patents (SEPs) and fair, reasonable, and non-discriminatory (FRAND) commitments have been filed before the Competition Commission of India (CCI). These cases pertain to well established technology companies that granted SEPs for their innovations in the telecommunications sector.
The presumption is that SEP owners are dominant and therefore immune to competitive constraints. It is significant that all cases pertaining to SEPs have been considered in the framework of Section 4 (Abuse of Dominance) in terms of their anticompetitive effects and not with reference to Section 3(4) which deals with agreements and Section 3(5) which deals with agreements protected under IPRs. India. Three proceedings on the licensing of SEPs in the Delhi High Court (Ericsson v. Micromax, Ericsson v. Intex, and Ericsson v. Xiaomi) and pending investigations of Ericsson’s licensing practices of its SEPs by the Competition Commission of India (“CCI”) have attracted intense international attention.
The author ventures to provide an outline to some of the underlying disputes that drive the debate in relation to SEPs and FRAND. The paper provides a background on the IPR policies in SSOs. The author also analyses the recent cases involving SEPs in India.
Keywords: FRAND, SEP Licencing, Standardisation