Patent Thickets And Non-Practicing Entities In The 5g And 6g Era: A Critical Evaluation Of Market Exclusionary Tactics Under Antitrust Law
- IJLLR Journal
- 2 hours ago
- 1 min read
Aswin P S, National Law Institute University, Bhopal
ABSTRACT
The commercialisation of fifth-generation (‘5G’) wireless telecommunications infrastructure has concentrated intellectual property rights within a narrow class of patent holders, including structurally disruptive Non-Practicing Entities (‘NPEs’). As the global industry advances toward sixth-generation (‘6G’) networks, tensions between intellectual property maximalism and competitive market access intensify. This article evaluates market exclusionary tactics deployed by NPEs through patent thickets, royalty stacking, and strategic injunctive relief against implementers of standard essential patents (‘SEPs’).
The analysis situates these developments within India, where the antitrust landscape was profoundly unsettled by the Delhi High Court Division Bench ruling in Telefonaktiebolaget LM Ericsson (Publ) v Competition Commission of India (‘Ericsson v CCI’). Premised on the principle of generalia specialibus non derogant, the court stripped the Competition Commission of India (‘CCI’) of jurisdiction to investigate abusive patent licensing, assigning the regulatory space entirely to the Controller of Patents under Chapter XVI of the Patents Act, 1970 (‘the Patents Act’). This jurisdictional vacuum creates a systemic policy failure, leaving India’s nascent telecommunications manufacturing sector structurally exposed to predatory NPE conduct.
By comparing the European Union’s framework in Huawei Technologies Co Ltd v ZTE Corp and the United States’ approach under Section 2 of the Sherman Act, this article proposes a recalibrated regulatory synthesis premised on concurrent jurisdiction, targeted legislative amendment, and modified application of the essential facilities doctrine to aggregated patent thickets, concluding with a concrete blueprint for reform.
Keywords: Patent Thickets, Non-Practicing Entities (‘NPEs’), Standard Essential Patents (‘SEPs’), Antitrust Law, Jurisdictional Vacuum.
