This article is written by Vishakha Singh, from Faculty of Law, Jamia Millia Islamia and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Introduction

Each industry depends on norms and they are one of the significant wellsprings of productivity, advancement/innovation, and public welfare in an economy. Norms or standards are essential prerequisites that require specialized, quality, or security benchmarks for accomplishing network impacts in an industry. They likewise fulfill the capacity of setting down the least rule for manufacturing of products. Standards are especially required in ventures, like broadcast communications, computing, and different enterprises which influence the advanced economy, and are by and large set by Standard Setting Organizations (SSOs) or then again industry consortia in a community way or potentially shut way. 

Notwithstanding, the course of standard-setting progressively includes licensed advances and may enlarge the degree against cutthroat anti-competition behavior. At the point when such standards require the utilization of a specific patent, it delivers the protected development as crucial for the modern norm and appears to intensify the power in the possession of the patent proprietor. Post standardization and after the incorporation of the patent, it becomes obligatory for a maker to get a permit from the patent proprietor to utilize the SEP.

The particulars of the case

The brief material facts

Ericsson sued Micromax Informatics Ltd. also, Mercury Electronics Ltd., a couple of months prior for supposedly infringing 8 of its telecom licenses for a scope of remote advancements, including 3G, AMR, and Edge. Ericsson as an individual from European Telecommunications Standards Institute (ETSI), a standard-setting association had resolved to allow irreversible licenses in regards to its SEPs in 2G, 3G, and EDGE innovation based on FRAND conditions.

The Delhi High Court had allowed an ex-parte interim injunction on the absolute first day even before Micromax could get a lawful notification that it had been sued. The witness Micromax Informatics Ltd. (Micromax) affirmed that Ericsson had mishandled its prevailing situation on the dominant position for GSM technology by: 

1. Requesting unnecessary eminence depends on the deal worth of the whole phone rather than the worth of the licensed innovation and technology utilized in the telephone.
2. Filing the injunction before the court of law and taking steps to threaten Micromax’s inability to pay the royalty to the Securities Exchange Board of India, before it’s listing.

Issue raised

Ericsson challenged the order of CCI because it seemed to be arbitrary in nature, and that it didn’t have the jurisdiction handling this dispute. The jurisdiction was tested because the question was at that point a topic of pending suits, and was identified with patent encroachment, and not competition law. Also, it was contended that the issue of patent abuse privileges should be settled under the Patents Act.

Contentions (arguments) advanced on behalf of

1. Ericsson: 

The nubs of petitioner’s claims were that:

On the allegation by Micromax on demanding royalty for entire mobile rather than just the patented technology, and for filing an injunction and threatening to release the report to SEBI, as an outcome of neglecting to pay the eminence.

[A] Ericsson claims that it was qualified for doing as such, under the Fair, Reasonable and Non-Discriminatory (FRAND) terms, by prudence of it being a piece of the European Telecommunications Standards Institute (ETSI), that granted licenses for the previously mentioned advances.

Ericsson asserted that it was an instance of a patent dispute, wherein, CCI couldn’t practice its purview. At the point when the CCI proceeded with the DG to research the matter, the move was challenged in the Delhi High Court.

2. Competition Commission of India: 

The CCI set forward two convincing contentions to restore its jurisdictional power, by demonstrating that these two laws were not incongruous in nature- 

[A] That the Patent Law in itself guarantees that there is no abuse of patent by accommodating obligatory authorizing as a remedy in personam. 

[B] Fixing fines, issuing orders to cease to shut everything down is a portion of the remedies given as remedies in rem.

Observation of the court

In the meantime, Ericsson filed a writ petition by challenging this order battling that the Patent Act gave the cure of compulsory licensing in such cases and would supersede the Competition Act, 2002 (‘the Act’). Subsequently, the court managed whether or not there was any irreconcilable irregularity between the Patent Act and the Act. 

It might give the idea that IPR and the competition law are incongruous on the grounds that while the previous monopoly, the last option looks to forestall against anti-competitive approaches emerging from something very similar. Anyway, as indicated by the court, the solutions for abuse of patent rights given by the two laws are very unique. The Patent Act gives the cure of compulsory licensing for abuse of patents for example a remedy in personam, while Section 27 of the Act gives different remedies that incorporate demanding penalties, order to stop all activities for example remedies in rem. In view of this examination, the court presumed that there was no beyond irreconcilable inconsistency between the two systems and the CCI could practice the jurisdiction despite the fact that there was a looming common suit for encroachment/infringement.

The second significant complaint raised was that there was no by all appearances abuse of predominance as Ericsson was just practicing their right as a genuine patent holder. The court broadly alluded to US cases like Rambus Inc. (FTC 2006) and EU cases like Motorola v. Apple, Huawei Ltd. v. ZTE. These choices broadly managed the topic of abuse of dominance by SEP holders by their inability to reveal patents during standard-setting interaction or looking for injunctions in court. 

In view of these choices, the court inferred that there was plausible that recording order or requesting excessive royalty by Ericsson could lead to abuse of dominance. This is on the grounds that the strain of judicial proceedings could constrain the consumer to indulge in a forceful or one-sided licensing arrangement which would antagonistically influence the consumer by improving the probability of a hike in prices in the downstream market. The court likewise held that a forthcoming licensee like Micromax could likewise go into FRAND arrangements/record an antitrust suit while claiming its authority to challenge the patent privileges of the licensor under the watchful eye of a civil court.

Analysis of the judgment

Through this exemplary decision the court has explained that the system of IPR and Competition law are both significant for promoting innovation as they give various remedies and are consequently corresponding in nature. In any case, the order additionally experiences seeing the issue too shortsightedly on the grounds that whether or not CCI can likewise allow compulsory license as a remedy is still left open. This is on the grounds that Section 27 of the Act gives ample residuary power of conceding remedy for ‘passing some other orders as CCI considers fit.’ This inquiry becomes important in light of the fact that a simple penalty/cease to shut everything down by CCI may not be the best solution for implementers. Conversely, it could likewise be contended that CCI should shun assuming control as a royalty setter passing on FRAND negotiations to showcase members, yet deflecting abusive practices through stop/cease order.

One more huge contribution by this choice is that through its examination of global antitrust decisions it has depicted developing concerns in the SEP-FRAND law. These issues will turn out to be progressively applicable in India where the key part is implementers and not SEP holders. This incorporate abuse of predominance: 

1. Because of refusal to permit license on FRAND Conditions or charging excessive license expense, after SEP holder gives such obligation to the Standard Setting Organization. 
2. By virtue of initiation/danger of commencement of injunction/different procedures by SEP holder looking to drive implementer to finish up licensing arrangement. 
3. Due to the inability to uncover by SEP holders as for the patents held opposite the norm during the course of standard turn of events and standard adoption. 
4. The capacity of the implementer to bring abuse of predominance claims corresponding to challenging the validity of the patents under the steady gaze of the civil court. 

Numerous implementers/SEP holders are hanging tight eagerly for the CCI’s choice on the benefits and the remedy it grants. Yet, this case is just the tip of the ice on antitrust issues in the SEP-FRAND worldview in India and CCI plays an immense part in explaining the particular issues enrolled above, yet this jurisdictional thumbs up by Delhi high court is a decent beginning.

How might the judgment affect India’s local brands? 

The judgment is a lift for India’s local producers/manufacturers in their fight against worldwide patent holders. Be that as it may, while it surely approves the job and powers of India’s young market controller, it will most likely be pursued. 

What is the stand of the government? 

The Department of Industrial Policy and Promotion has as of late delivered a conversation paper on these issues, welcoming remarks from partners. It would be obvious assuming the government plans to direct this space, given the solid ramifications for not simply its flagship ‘Make in India’ and ‘Digital India’ programs, yet in addition its international strategy story on securing IPRs and encouraging development. 

Quick invite ventures from the government would be a last word on the National IPR Policy and the reception of the National Competition Policy anticipated starting around 2014 and 2011 separately.

The legitimacy of Ericsson’s patents from the view of the grievance of Intex 

The Delhi High Court in the case of Ericsson v. Intex, tracked down that, albeit the topic of the licenses in a suit ‘can’t be analyzed minutely or be deciphered in microscopically way at the break stage in a suit for encroachment of patent’, at first sight ‘the suit patents have all the earmarks of being valid’. In arriving at its decision, the court alluded to Intex’s assertions in its complaint to the CCI that Ericsson’s SEPs, ‘which structure a piece of the 2G/3G innovation, is fundamental to be applied/utilized by any Indian telecom/cell phone administrator’, leaving Intex and different organizations with no option other ‘than to carry out the SEPs claimed by Ericsson in the area of 2G/3G innovation, including the suit patents’. The court saw that the reason for Intex’s grievance was that Ericsson possesses SEPs that are indeed vital for media transmission devices. The court likewise featured Intex’s assertion in its protest before the IPAB, in which Intex conceded that the licenses in suit were straightforwardly identified with Intex’s business. The court observed that Intex had obviously conceded that Ericsson licenses were truth be told to SEPs. The court said that ‘unless the suit licenses are proclaimed as invalid in denial petitions recorded by (Intex), the equivalent can’t be permitted to be encroached by (Intex), who is additionally reluctant to execute a FRAND license’. The court in this manner reasoned that Ericsson’s licenses in the suit were valid and infringed.

Conclusion

The Delhi High Court perceived the jurisdiction of the CCI in this. The appellant and the respondent entered a Global Patent License Agreement, outside of the court, in this manner stopping the since a long time ago drawn question. Micromax likewise pulled out its complaint filed against Ericsson in the CCI, subsequent to consenting to a non-disclosure agreement, which keeps them from unveiling the terms and nature of the settlement. It can be deciphered with sureness from the court’s point of view, that statutes can’t be managed in outright confinement from each other. The soul of any legislation is to ensure the common interests perceived by the lawmakers. This can be reflected in the court’s emphasis on keeping a harmonious connection between The Patents Act and The Competition Act. The two laws might appear to be problematic to a layman’s eye, yet in the center of their plan, the two of them try to secure normal interests and accordingly don’t abrogate or go against one another.

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