Aggarwal and Sircar on the Indian Ericsson v. CCI Judgment

Ambika Aggarwal and Anindya Sircar have published a paper titled Jurisdictional Changes in Indian Patent Enforcement—Comment on the Ericsson v. CCI Decision, 55 IIC 954 (2024).  The paper discusses a July 2023 decision of the Delhi High Court which, as I noted last year, held that the Competition Commission of India (CCI) lacked jurisdiction to consider whether patent holders Ericsson and Monsanto abused their dominant position by charging excessive royalties, in violation of sections 3 or 4 of India’s Competition Act.  Here is the 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.

I understand that the decision is now on appeal to the Indian Supreme Court.