A faceoff

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Pravin Anand and Abhilasha Nautiyal provide pointers on how to handle buse of dominance in IP matters

Does a standard-essential patent (SEP) holder abuse its dominant position by bringing an infringement action seeking an injunction prohibiting the infringement of its patent or seeking the recall of products manufactured with its patent? Ruling on 16 July in Huawei Technologies Co Ltd v ZTE Corp, the European Court of Justice (ECJ) recently answered this question with a qualified no.

What is an Indian court likely to decide when confronted with the same question? This comment compares the Huawei opinion with a 2 September order of Delhi High Court, passed by Justice Manmohan Singh in Ericsson v iBall, to draw parallels for criteria an Indian court is likely to consider.

 Pravin Anand
Pravin Anand

Players in some industries, usually where compatibility of products is critical, agree to standardize the technical aspects of their products. The owners of patents included in the standardized technical aspects, the standard-essential patents (SEPs), commit to license these patents to entities who use it on fair, reasonable and non-discriminatory (FRAND) terms.

Problems arise when an SEP holder and a standard implementer cannot reach a deal on a licence. The question then is should the SEP owner be able to seek an injunction prohibiting the infringement of its patent against the implementer, or would this amount to abuse of dominance?

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Pravin Anand is the managing partner of Anand and Anand, where bhilasha Nautiyal is a senior associate.

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Email: Pravin@anandandanand.com

Email: Abhilasha@anandandanand.com

Tel: +91 120 4059300

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