FRAND ROYALTIES AND THE MATERIALISING JURISPRUDENCE OF SEPS IN INDIA

Author – Shubhra Rai, B.A.LL.B , LLM (National University of Singapore), Sub Registrar (U.P.P.S.C)

Introduction

So far as the interface between patents and competition law is concerned, they both are so intertwined with each other that they appear to be at loggerheads,since the former enshrines and protects monopoly/exclusive rights and the latter seeks to prohibit monopoly in the market. However, we cannot shy away from the fact that entities compete to develop innovative products and processes securing the reward of exclusivity. Hence, both arms of law are intended to act in a complementary role aiming at encouraging inventions, competition and industry. Accordingly, imprudent and unbridled intervention by competition authority diminishing the exercise monopoly rights under the patent law can erode the very motivation to innovate breaking backbone of the patent system. Conversely, giving patent owners a free ride may result in market distortion and can have a dismal impact on competition when a patent holder, commanding a dominant position gravitates towards exploitative or exclusionary practices to establish or expand its turf in the market indulging in refusing to deal, vicious litigations, tying agreements and vertical restraints.

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