Injunctions in standard essential patent cases

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Dear Editor,

The central question before the court while deciding upon the matter of granting an injunction in standard essential patent (SEP) cases is whether the plaintiff has established a prima facie case of:

  • Defendant infringing the SEP
  • Validity of the SEP
  • Essentiality of the SEP alleged to be infringed by the defendant
  • No abuse of dominant position by the SEP owner (plaintiff)

The first and second issues are common for any patent infringement cases, and it is not difficult for a plaintiff to establish a prima facie case on these issues in SEP infringement cases in India, considering invention covered by patent has been adopted as standard for an industry with competing alternative technologies. Even if the defendant has tried to take the defence of non-infringement and invalidity of the patent, Delhi High Court has disregarded such defence as frivolous.

The court has sometimes overlooked the latter two issues while granting injunctions based on the conduct of both plaintiff and defendant, and past interaction between plaintiff and defendant before filing of an infringement suit. Generally, the patentee files for SEP infringement only after failing to negotiate a licence agreement with the infringer, which in itself is a long and complicated process. The SEP owner is obliged to make an offer of licence agreement with fair, reasonable and non-discriminatory (FRAND) terms and conditions to the infringer in return for a declaration of its patent as standard by the standard setting organization. Non-compliance with such a step is prejudicial to the plaintiff in an SEP infringement suit, specifically for grant of an interim injunction order.

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