Abstract
The jurisdiction of the Competition Commission of India in all matters concerning patent law has recently been extinguished by the Delhi High Court in the case of Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India. In a rather sharp distinction to its counterpart agencies in other advanced markets, such as the European Commission, the Indian antitrust authority can no longer assess any claims related to patent licensing. This power has been shifted to the office of the Controller of Patents. The intent of the court might have been to refine the dispute resolution mechanism. However, in paying heed only to rules of statutory interpretation, the division bench has left unresolved several substantive implications arising from this ruling. This new perspective ignores the accommodation made in competition law for intellectual property carve-outs as well as Indian competition law policy fashioned after foreign jurisdictions. It deepens the discord in inter-regulatory communication, reduces the choice of forum for future litigants, consequently also curbing their choice of remedy. Since compulsory licensing is not a favourable remedy in technical standardisation disputes, and it remains the only remedy that the IP Office can grant, it is likely that, as a consequence of the this judgement, disputing parties will view judicial venues as the sole viable venues for SEP dispute resolution even when the content of their dispute attracts antitrust penalties.
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Notes
Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India & Anr, 2023 SCC OnLine Del 4078.
Eagles and Longdin (2011), p. 1 “Finding the appropriate legal mechanism through which to mediate the interaction of intellectual property rights and competition values is a problem that at various times, and with varying degrees of urgency, has confronted policy makers, courts and regulators in more than one OECD economy.”
Ministry of Corporate Affairs, Government of India, ‘Competition Commission of India’ http://www.mca.gov.in/content/mca/global/en/about-us/affiliated-offices/cci.html.html accessed 5 October 2023.
Competition Act 2002 (Act 12 of 2003) (IN).
Ibid, Sec. 3.
Ibid, Sec. 4.
Ministry of Commerce and Industry, Government of India, ‘Controller General of Patents, Designs and Trade Marks’ https://ipindia.gov.in/about-us.htm accessed 6 October 2023.
Patents Act 1970 (Act 39 of 1970) (IN).
Ibid, Sec. 84.
OECD (Organisation for Economic Co-operation and Development) is an intergovernmental organisation with 38 member countries, founded in 1961 to stimulate economic progress and world trade.
Directorate for Financial and Enterprise Affairs, Competition Committee, OECD, “Licensing of IP Rights and Competition Law – Note by India”, DAF/COMP/WD(2019)4, 6 June 2019 [7].
Czapracka (2006), p. 45.
Pitofsky (2001), pp. 913, 917.
See Lemley (2007), pp, 1, 11.
Carrier (2017).
Bastidas Venegas (2022), p. 37 “… currently the general view is that Intellectual Property Law and Competition Law are to a large extent complementary, but that there may be particular points of contact where the two bodies of rules collide.”
See Abbott (2006).
See Van Cleynenbreugel (2018), pp. 1–11 “Competition authorities seem to have either excluded different innovation-related testing frameworks or have – often cautiously – proposed a more innovation-focused analytical framework or theory of competitive harm”; see also Devlin (2016), p. 5 “Wise competition policy thus exercises restraint, deferring to the procompetitive virtue of unilateral and collaborative efforts to ease patent-created impediments to marketing, and being cautious not to chill efficient conduct by instilling fear of inadvertent antitrust violations.”
Feldman (2008), p. 1.
LPA/246/2016.
LPA/247/2016.
Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India, 2016 SCC OnLine Del 1951.
Ibid [142].
WP (C) 8379/2015.
LPA/550/2016.
Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India, W.P.(C) 5604/2015 & CMs No.10097/2015.
GSM (Global System for Mobile Communications) and/or WCDMA (Wideband Code Division Multiple Access) compliant products.
LPA/150/2020.
Monsanto Holdings Pvt. Ltd. v. Competition Commission of India, 2020 SCC OnLine Del 598.
Bt cotton is a genetically modified pest resistant plant cotton variety that produces an insecticide to combat bollworm.
MMBL (Mahyco Monsanto Biotech Ltd.) was responsible in sublicensing of Bt cotton technology in India.
Monsanto (supra note 29), [20].
Monsanto (supra note 29), [27].
A later law repeals an earlier law.
The general (law) does not derogate from the specific (law).
Licensing of IP Rights and Competition Law – Note by India (supra note 11).
Patents Act 1970, Secs. 84(7)(c) read with 140(1)(iii)(c).
Patents Act 1970, Secs. 84(6) and 90(1)(ix).
See Patents Act 1970, Chapter XVI.
CCI (supra note 1), [48] “The factors that the CCI is required to consider under Sections 19(3) and 19(4) when assessing a potential violation of Sections 3 or 4 of the Competition Act are not very different from those that the Controller, in exercise of power to grant a compulsory license, will consider in terms of Sections 84(6) and 84(7), especially when read with Sections 83 and 89 of the Patents Act.”
The Patents (Amendment) Act 2002 (Act 38 of 2002) (IN).
CCI (supra note 1) [56-58].
CCI (supra note 1) [51] “Since such reasonable conditions are exempted from examination under section 3(5)(i)(b) of the Competition Act, it is indicative of the legislature’s intendment as to the exclusive domain of the Patents Act regarding reasonable conditions.”
CCI (supra note 1) [49].
Competition Act 2002, Sec. 3(5) (emphasis added).
FICCI, New Delhi v. United Producers/Distributors Forum, Mumbai, 2011 Comp LR 0079 (CCI).
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 SCC OnLine CCI 95.
Ericsson (supra note 22) [172].
Swapan Dey v. Vifor International (AG), 2022 SCC OnLine CCI 62.
Ibid [65].
See Arora (2022).
Directorate for Financial and Enterprise Affairs, Competition Committee, OECD, “Annual Report on Competition Policy Developments in India-2022”, DAF/COMP/AR(2022)45, 15 November 2022 [5].
Case 24/67 Parke, Davis & Co. v. Probel et al [1968] ECR 55.
Ministry of Corporate Affairs, Government of India, “Report of the Competition Law Review Committee”, 26 July 2019 [7.1].
Joined Cases C-241/91 P and 242/91 P Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v. Commission of the European Communities [1995] ECR I-00743.
Case 418/01 IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. [2004] ECR I-05039.
Case 170/13 Huawei Technologies Co. Ltd. v. ZTE Corp [2015].
Ibid [42].
Patents Act 1970, Secs. 84(6) and 84(7).
Patents Act 1970, Sec. 84 (3).
Patents Act 1970, Sec. 84 (1).
Patents Act 1970, Sec. 84(4).
Patents Act 1970, Secs. 84(6) and (7).
Competition Act 2002, Sec. 26.
Competition Act 2002, Sec. 19.
Gour (2023).
Compulsory License Application No. 1 of 2013, The Controller of Patents (Patents Office Mumbai, 29 October 2013) https://ipindia.gov.in/writereaddata/Portal/News/355_1_Order_30October2013.pdf accessed 8 November 2023.
Claimed by Indian Patent IN 203937.
Compulsory License Application No. 1 of 2015, The Controller of Patents (Patents Office Mumbai, 19 January 2016) https://ipindia.gov.in/writereaddata/Portal/News/33_1_2-compulsory-license-application-20jan2016.pdf accessed 8 November 2023.
Claimed by Indian Patent IN 206543.
Compulsory License Application No. 1 of 2011, The Controller of Patents (Patents Office Mumbai, 9 March 2012) https://ipindia.gov.in/writereaddata/Portal/News/358_1_compulsory_License_12032012.pdf accessed 8 November 2023.
Disclosed in Indian Patent application IN 1602/MAS/1998.
Onderkova (2021).
CCI (supra note 1) [26].
Lok Sabha, Parliamentary Debates, “Discussion on the Patents (Amendment) Bill, 2002 (Bill passed)” https://eparlib.nic.in/bitstream/123456789/712579/1/4154.pdf accessed 24 September 2023.
The Ministry of Commerce & Industry, Government of India, “A Report on the Revision of the law in India relation to Patents for Inventions by Shri Justice N. Rajagopala Ayyangar”, September 1959 https://ipindia.gov.in/writereaddata/Portal/Images/pdf/1959-_Justice_N_R_Ayyangar_committee_report.pdf accessed 23 October 2023.
Ibid [201] “… patents might sometimes form a convenient nuclei on which monopolistic combinations (and restrictive practices which are the concomitant of combinations and to effectuate which the combination might come into existence) are based …”.
Ibid [191].
Deepak (2015), p. 135.
Ayyangar Committee Report (supra note 76) [200].
The Ministry of Corporate Affairs, Government of India, “High Level Committee on Competition Policy and Law”, 2000 https://theindiancompetitionlaw.files.wordpress.com/2013/02/report_of_high_level_committee_on_competition_policy_law_svs_raghavan_committee.pdf accessed 28 September 2023.
Ibid.
CLRC Report (supra note 54) [7.6].
Ibid [7.4].
Ibid [4.6].
Competition Commission of India v. Bharti Airtel Ltd. And Ors., (2019) 2 SCC 521.
Singh (2023), p. 77.
Competition Commission of India v. Bharti Airtel Ltd. And Ors., (2019) 2 SCC 521 [33].
HT Media Limited v. Super Cassettes Industries Limited, 2014 SCC OnLine CCI 120.
Competition Commission of India v. JCB India Ltd., (2020) 17 SCC 446.
“Dawn raid” is common parlance for an unannounced search and seizure operation.
Matrimony.com Ltd. v. Google LLC, 2018 SCC OnLine CCI 1.
See Chopra and Sethi (2019).
Ibid, p. 472 “It is hoped that with the Delhi High Court settling the issue of jurisdiction on this subject through the Ericsson Judgement, the CCI can move ahead with its investigations in pending matters so that a wider body of jurisprudence is developed.”
See Aamir Khan Productions v. Union of India, (2010) 112 Bom LR 3778.
Patents Act 1970, Sec. 90(1)(ix).
See Houldsworth (2023), “The fact that European companies own a diminishing share of global patents, while Chinese businesses own a growing proportion, was also emphasised.”
Koninklijke Philips Electronics N.V. v. Rajesh Bansal, (2018) 251 DLT 602.
InterDigital Technology Corporation v. Xiaomi Corporation, (2021) 282 DLT 400.
Nokia v. OPPO, 2023 SCC OnLine Del 3841.
Soni (2023).
Huawei (n. 57).
Sarkar (2023a).
See Sarkar (2023b).
Intex Technologies (India) Limited v. Telefonaktiebolaget LM Ericsson (Publ), Case No. 76/2023, CCI https://www.cci.gov.in/search-filter-details/1580 accessed 6 September 2023.
Intex v. Ericsson, 2023 SCC OnLine Del 1845.
High Court of Delhi Rules Governing Patent Suits, 2022 (24 February 2022) https://delhihighcourt.nic.in/uploads/notifications/NotificationFile_WPGZPIF1R3R.PDF accessed 13 September 2023.
Intex (supra note 110).
CCI (supra note 1) [48].
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Ambika Aggarwal is currently a Research Assistant at the Department for Promotion of Industry and Internal Trade (DPIIT)-IPR Chair, (Ministry of Commerce and Industry, GoI), NALSAR University of Law, India. She is a recipient of the Danida Fellowship on Fostering Innovation and Commercialisation of Intellectual Property Rights (2023) awarded by the Danish Ministry of Foreign Affairs.
Anindya Sircar is the DPIIT-IPR Chair Professor under the aegis of Ministry of Commerce and Industry, GoI at NALSAR University of Law, India. He is also engaged in consulting, strategizing, teaching and training programmes in intellectual property management. He is an IP advisor to several companies and firms, and Visiting Faculty on IP in several law schools. He continues to be a resource for numerous workshops, conferences and seminars in the field of IP.
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Aggarwal, A., Sircar, A. Jurisdictional Changes in Indian Patent Enforcement – Comment on the Ericsson v. CCI Decision. IIC (2024). https://doi.org/10.1007/s40319-024-01464-6
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DOI: https://doi.org/10.1007/s40319-024-01464-6