FRAND in India

Complications and Quandaries in the ICT Sector: Competition Issues and Standard Essential Patents, Ashish Bharadwaj, Vishwas Devaiah, Indranath Gupta, eds., Springer International, 2017, Forthcoming

George Mason Law & Economics Research Paper No. 16-32

19 Pages Posted: 12 Aug 2016 Last revised: 11 Apr 2017

See all articles by Koren Wong-Ervin

Koren Wong-Ervin

Director of IP & Competition Policy at Qualcomm Incorporated and Senior Expert at China's University of International Business & Economics (formerly at the U.S. Federal Trade Commission)

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Bruce H. Kobayashi

George Mason University - School of Law

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: June 15, 2016

Abstract

In the last several years, India has raised several novel and controversial concerns regarding standard-essential patents (SEPs). For example, in 2013 and 2014, the Competition Commission of India (CCI) issued investigation orders against Ericsson, alleging that the company violated its commitments to license on fair, reasonable, and nondiscriminatory (FRAND) terms by imposing discriminatory and “excessive” royalty rates and using Non-Disclosure Agreements (NDAs). In its investigation orders, the CCI stated that “forcing a party to execute [an] NDA” and “imposing excessive and unfair royalty rates” constitutes “prima facie” abuse of dominance and violation of section 4 of the Indian Competition Act, as does “[i]mposing a jurisdiction clause debarring [the licensee] from getting disputes adjudicated in the country where both parties were in business.” Most recently, India’s Department of Industrial Policy and Promotion (DIPP) issued a Discussion Paper on SEPs, which, among other things, expresses concerns about holdup by patent holders while omitting any concerns about holdup and holdout by implementers.

This article analyzes these developments, providing guidance based upon the approach taken by the United States and the Europe Commission. We offer policy recommendations concerning the availability of injunctive relief; the advisability of a one-size-fits all template for standard-development or standard-setting organizations (SDOs or SSOs); the imposition of royalty caps or competition sanctions for “excessive pricing”: the use of NDAs and the “Non Discriminatory” element of FRAND; balancing desires for transparency with needs for confidentiality in licensing; and the use of international arbitration on a portfolio basis as likely the most efficient and realistic means of resolving FRAND disputes.

Keywords: India, CCI, FRAND, Standard-Essential Patents, SEPs, Excessive Pricing

JEL Classification: K21, L4, l5

Suggested Citation

Wong-Ervin, Koren and Ginsburg, Douglas H. and Kobayashi, Bruce H. and Wright, Joshua D., FRAND in India (June 15, 2016). Complications and Quandaries in the ICT Sector: Competition Issues and Standard Essential Patents, Ashish Bharadwaj, Vishwas Devaiah, Indranath Gupta, eds., Springer International, 2017, Forthcoming; George Mason Law & Economics Research Paper No. 16-32. Available at SSRN: https://ssrn.com/abstract=2821344 or http://dx.doi.org/10.2139/ssrn.2821344

Koren Wong-Ervin (Contact Author)

Director of IP & Competition Policy at Qualcomm Incorporated and Senior Expert at China's University of International Business & Economics (formerly at the U.S. Federal Trade Commission) ( email )

1730 Pennsylvania Ave N.W.
Suite 850
Washington DC, DC 20006-1850
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Bruce H. Kobayashi

George Mason University - School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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