Wednesday, March 7, 2018

Pant and Jain on SEP Cases in India

Ameya Pant and Dipesh Jain have published an article titled Complexities Surrounding SEP Cases in India:  An Overview of Decisions by the High Court and Competition Commission of India, 13 JIPLP 132-42 (2018).  Here is a link to the paper, and here is the abstract:
This article aims to ascertain whether the decisions passed by the Delhi High Court and Competition Commission of India (CCI), pertaining to standard essential patents (SEPs) are in consonance with international fair, reasonable and nondiscriminatory (FRAND) jurisprudence.
It has been observed that the decisions do not take into consideration the facts of the precedents which are relied upon, and severely lack analysis, which leads to misapplication of the judicial precedents. The decisions by the judiciary and the market regulator display two divergent stands with respect to the ideal base for calculating royalties. As the tasks of both adjudicatory bodies vastly differ, the court would have to determine damages, whereas the market regulator shall ascertain whether the conduct of basing royalties on the product is abusive. The judiciary uses the method of comparable licenses for ascertaining interim damages, however fails to fully appreciate the methodology, which showcases misapplication of the damages model.
The article pits the rational of the adjudicatory bodies against decisions by courts in the USA, EU and China, alongside views expressed by market regulators and IPR policies of various standard-setting organizations (SSOs), thereby giving a holistic view while assessing the Indian judiciary’s take on FRAND.
For other recent takes on interim relief in India, from a variety of viewpoints, see this January 5, 2018 post by Punkhuri Chawla, this October 15, 2017 post by Prashant Reddy and this August 1, 2017 one by Prateek Surisetti, all on SpicyIP.  For further discussion of why interim orders are so important in India--very few cases are litigated all the way through to judgment--see this August 1, 2017 article in the Wall Street Journal.   

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