Wednesday, November 2, 2016

Pai and Daryanani on Patents and Antitrust in India

Yogesh Pai and Nitesh Daryanani have posted a paper on ssrn titled Patents and Competition Law in India: CCI's Reductionist Approach in Evaluating Competitive Harm.  (I understand that the paper will be published in a forthcoming issue of the Oxford Journal of Antitrust Enforcement.  CCI, by the way, is the Competition Commission of India.)  Here is a link to the paper, and here is the abstract:
The objective of this paper is to examine the CCI’s reasoning and approach in patent – related cases, in light of (i) the legislative framework governing competition and patent law in India, (ii) the economic theories that govern the intersection between antitrust and patent law, and (iii) the manner in which competition agencies in comparative jurisdictions have dealt with similar agreements and conduct by a patent holder.
Part 1 of this paper deals with an analysis of the distinction between sections 3 and 4 of the Competition Act 2002, in light of the CCI’s tendency to conflate issues pertaining to abuse of dominance and evaluation of anti-competitive agreement involving patents. Part 2 deals with constraints on pricing imposed in several CCI rulings. Part 3 deals with nonprice licensing restrictions as constituting abuse of dominance. Part 4 deals with cases involving a refusal to deal where products are protected by IP rights or proprietary technologies. Part 5 deals with the practice of price discrimination in unified systems markets dominated by intellectual property.
The paper presents an interesting comparative perspective on the intersection of patents and antitrust in India, the E.U., and the U.S.  As alluded to the abstract, Part 2 of the paper (titled On the patent holder's right to determine the price of the patent based on the market), addresses among other matters CCI's proceedings against Ericsson for alleged abuse of dominant position and Ericsson's related case against CCI before the Delhi High Court (see blog post here); Ericsson's proceeding against Intex (see blog post here); and the U.S. case law on smallest salable patent practicing unit (SSPPU).  

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