The recent orders of the Competition Commission of India (CCI) asking its director general to investigate Ericsson’s alleged anticompetitive conduct raises issues lying at the crossroads of IP rights (IPR) and competition. The order also raises the issue of third-party access on fair and reasonable terms, which our judiciary is yet to comprehend.
Indian companies Micromax and Intex are the respective complainants in the two CCI orders directing investigation. One issue specific to the Micromax case relates to the overlapping jurisdiction of various agencies. As reported, Ericsson and Micromax had engaged in negotiations and litigation before the complaint was filed before the CCI. Earlier parleys included Ericsson’s requested royalty rate, an interim royalty agreement and mediation between the parties. Such mediation did not succeed, partly because of Ericsson’s refusal to reveal licensing agreement terms with similarly situated parties. Another off-putting development on this is the order by the Delhi High Court directing CCI director general and CCI not to issue report and final orders on the Micromax case.
The central concern in these two cases is the demand of unreasonable and unfair royalty. Standards based on patents have been predicated as engines of growth. Standard-setting also enhances competition by ensuring that products from multiple manufacturers are compatible and interoperable. However, there are risks to such collaborative standard-setting—patent hold-up, royalty stacking and chilling innovation by ‘locking in’ industry to a standard. In such a situation, a standard can acquire market power as there can be no alternate technology.
It needs to be ensured that market power coming from the patents essential to a standard—called standard essential patents (SEPs)—is not exploited by anticompetitive practices. One way to ensure this is by eliciting ‘fair, reasonable and non-discriminatory’ (FRAND) licensing commitments by the owner of the SEP. Ericsson is a member of the European Telecommunications Standards Institute (ETSI), an international non-profit standard-setting organisation, and is required to grant licence on FRAND terms.