The Issues And Challenges In Recognising Sep And Frand Terms In India- A Critical Analysis
- IJLLR Journal
- 34 minutes ago
- 2 min read
Akshaya S, Tamil Nadu National Law University, TNNLU
ABSTRACT
Standard Essential Patents (SEP) occupies a pivotal role in technology driven markets, because it secures the innovations that are essential to compliance with technical standards. The mandate to licence such patents under Fair and Reasonable and Non- discriminatory (FRAND) conditions is intended to prevent the abuse of market power in the form of standardisation. However, India faces significant challenges in recognising SEP and FRAND commitments due to absence of specific statutory framework.
This study is to critically analyse whether the current provisions of the Patent Act,1970 are adequate to tackle the issues arising out of licensing, recognition, and implementation of SEPs. It further evaluates the adequacy of general mechanism of Patent law such as compulsory licensing and statutory restrictions on patent rights in addressing the issues that arises in context of SEPs particularly those related to FRAND obligations.
The paper further examines the interface between SEP and FRAND obligations with the Competition Act, 2002 as amended from time to time, it evaluates how the assertion of SEPs and FRAND terms, can contravene the principles of Competition law, especially in terms of abuse of dominant position, unfair licensing practices or exclusionary behaviour. The study examines the purpose and stipulation of both acts to find whether the SEP related practices are in conflict with competition law principles in India. By using the decision of CCI and the Indian courts, the study highlights the tensions between safeguarding Intellectual Property Rights and deterring anti-competitive behaviours like abuse of dominance and patent hold up.
While other countries like UK, US and EU are already in place of recognising SEP by regulatory mechanism, but India remains in struggling phase, the Indian framework continues to rely on general provisions of Patent Act and the competition Act 2002, which might be useful in addressing compulsory licence and abuse of dominance but not adequate to address the unique complexities of SEPs. In the end the study highlights the limitations of current approach and argues for coherent legal or regulatory framework to recognize SEPs and to enforce FRAND commitments in India in a uniform and predictable manner.
Keywords: Standard essential patent, FRAND licensing, Patent Act 1970, Competition Act,2002
