Issues in Indian SEP cases Prof. Avirup Bose

Transcript:Issues in Indian SEP cases Prof. Avirup Bose:
Issues in Indian SEP cases Prof. Avirup Bose Jindal Global Law School Jindal Initiative on Research in IP and Competition O.P. Jindal Global University FRAND LITIGATION IN INDIA Cases decided by Competition Commission of India (prima facie orders): Micromax v Ericsson (2013) Intex v Ericsson (2013) iBall v Ericsson (2015) Cases decided by Delhi High Court: Ericsson v Intex (2015) Ericsson v CCI (2016) Other major relevant cases: Ericsson v Lava (2016) Ericsson v Xiaomi (2016) Cci on frand From the three prima facie orders, CCI stance on FRAND encumbered SEP cases may be summarised as below: As a member of ETSI, Ericsson is bound by contractual obligations under FRAND FRAND licenses are primarily intended to prevent “hold ups” and “royalty stacking”, common problems associated with standardisation of technology Ericsson is dominant in the relevant market of SEPs for 2G, 3G and 4G technologies in GSM standard compliant mobile communication devices in India Licensing practices adopted by Ericsson were discriminatory since royalties were being charged on the price of the end device (EMVR) as opposed to the chip set where the technology is implemented (SSPPU) The non disclosure agreements (NDAs) that implementers were forced to sign was indicative of discriminatory licensing practices and a breach of FRAND obligations of applying FRAND terms fairly and uniformly to similarly placed players ANALYSING CCI’s position Initial orders decided in 2013 (also the very first FRAND cases in India) iBall judgment delivered by CCI on May 12, 2015. 2 months after Intex order was delivered by Delhi High Court in March, 2015 but almost mimicking the same 8 page judgment delivered in preceding cases of Micromax and Intex right at the start in 2013 and no reference of the detailed High Court Intex judgment (CCI and Delhi High Court holding contradictory positions from one another in the FRAND debate) The order speaks about what NDAs are. It is unclear as to its treatment of NDAs and whether they are per se anticompetitive under Indian competition law (some points of similarity with the District Court of Delaware case against Rockstar Consortium) Analysis on conduct of informant (willingness to license, potential hold out strategy) absent from analysis Cci on frand Two additional broader questions arising from CCI FRAND orders: pertain to: A) Should there be a threshold of inquiry for CCI prima facie orders under S.26(1) of the Competition Act that determines further investigation of a