Competition Law and Patent Licensing in India

Competition Law and Patent Licensing in India – CCI Jurisdiction, SEPs, FRAND and the Definitive Ericsson Rulings

Patents and competition law sit in a relationship of permanent structural tension. A patent is, by design, a legal monopoly that the State grants an inventor the exclusive right to prevent all others from making, using, selling, or importing the patented invention for a fixed term. Competition law, by contrast, exists precisely to prevent monopolistic conduct that harms markets, raises prices, restricts innovation, and forecloses the ability of new entrants to compete. Where a patent is an ordinary invention that a competitor can design around, this tension is manageable: the patent creates a limited monopoly in one product or process, but the market for the underlying need remains competitive. The tension becomes acute, however, when a patent is not merely valuable but indispensable: when it covers technology that has been incorporated into a technical standard that every device in a given market must implement to function at all. These are standard essential patents SEPs and the licensing of SEPs is where Indian competition law and patent law have most dramatically collided, producing over a decade of litigation that ultimately forced the Delhi High Court to decide, in two landmark rulings delivered in 2023, which of India’s two foundational statutory frameworks the Patents Act, 1970, or the Competition Act, 2002 governs when a SEP holder is accused of abusing its dominant position in patent licensing.

The answer the Division Bench delivered in July 2023, reversing the Single Bench’s 2016 position in a ruling that immediately became the most consequential decision in Indian SEP jurisprudence, is that the Patents Act prevails over the Competition Act, and that the Controller of Patents under Chapter XVI of the Patents Act is the appropriate forum for determining whether a SEP holder’s licensing terms are fair, reasonable, and non-discriminatory. It is a ruling that has profound implications for patent holders, for smartphone manufacturers, for the Competition Commission of India as an institution, and for the broader relationship between intellectual property rights and competition regulation in India. This article traces the full arc from the first CCI filings in 2013 through the 2023 Division Bench rulings, examines the statutory framework on both sides of this conflict, engages with the international comparative context including the CJEU’s seminal Huawei v. ZTE framework, and assesses the practical consequences of the current state of Indian SEP law for all participants in the ecosystem.

The Structural Problem – Why SEPs Create Unique Competition Law Concerns

Understanding why SEP licensing attracts competition law scrutiny requires appreciating how standard-setting works and why the combination of standardisation and patent protection creates market dynamics that ordinary IP licensing does not. Technical standards the protocols that ensure 2G, 3G, 4G, and 5G devices from different manufacturers can communicate with each other and with telecommunications networks are developed by Standard Development Organisations (SDOs) such as ETSI (the European Telecommunications Standards Institute) for cellular technology. The standards process involves participants from across the industry device manufacturers, chipset producers, network operators, and patent holders collaborating to agree on the technical specifications that all devices must implement to achieve interoperability.

During this process, patent holders frequently contribute patented technology to the standard. This contribution is commercially rational for the patent holder once their technology is incorporated into a widely adopted standard, every manufacturer of a compliant device must implement it, creating an enormous royalty base. But it creates a serious problem for the market: once a standard is adopted and billions of devices are built around it, there is no alternative to the patented technology. A smartphone manufacturer cannot choose not to implement Ericsson’s 2G or 4G patents; they are mathematically necessary for the device to function on a cellular network. The manufacturer is, therefore, a locked-in buyer of a licence that they have no option to refuse. The SEP holder, correspondingly, holds a monopoly not in the conventional sense of being the best supplier in a competitive market, but in the absolute sense that the implementer has no alternative and the SEP holder knows it.

To prevent this structural lock-in from being commercially exploited to the detriment of implementers and ultimately of consumers, SDOs including ETSI require patent holders who contribute technology to a standard to commit to licensing their SEPs on FRAND terms  Fair, Reasonable, And Non-Discriminatory terms. The FRAND commitment is a contractual undertaking that the SEP holder gives to the SDO as a condition of the standard incorporating their technology. It binds them to offer licences to all implementers, at rates and on terms that are fair and non-discriminatory that do not exploit the lock-in that standardisation creates. But the FRAND commitment raises its own set of questions: what royalty rate is “fair and reasonable” for a SEP? Who decides? What happens when the SEP holder and the implementer cannot agree? And crucially for Indian law if an SEP holder demands royalty rates or imposes licensing terms that are alleged to violate the FRAND commitment, is that a matter for the courts under the Patents Act, for the Competition Commission of India under the Competition Act, or for both?

The Indian Statutory Framework – Two Statutes, Two Regimes, One Conflict

The jurisdictional conflict at the heart of the Ericsson litigation arises from two distinct statutory frameworks that both plausibly reach the same conduct.

The Competition Act, 2002, administered by the Competition Commission of India, prohibits under Section 4 the abuse of a dominant position. Section 4(2) specifies particular forms of abuse, including imposing unfair or discriminatory conditions in the purchase or sale of goods or services, limiting or restricting the production of goods or services or technical or scientific development, and using a dominant position to enter into or protect other markets. The CCI’s jurisdiction to investigate abuse of dominance is broad and general it applies to any enterprise that is dominant in any relevant market. Section 3 of the Competition Act addresses anti-competitive agreements, including agreements that impose conditions on licensees or restrict the freedom of parties to buy or sell in markets. However, Section 3(5)(i) of the Competition Act carves out an express exception: the Act does not restrict the right of any person to restrain any infringement of, or to impose reasonable conditions as may be necessary for protecting, any rights granted under the Patents Act, 1970.

The Patents Act, 1970, addresses licensing-related conduct through a cluster of provisions in Chapter XVI. Section 84 provides for the grant of compulsory licences where, among other conditions, the reasonable requirements of the public with respect to the patented invention have not been satisfied, the patented invention is not available at a reasonably affordable price, or the patented invention is not worked in India. Section 84(6)(iv) requires a compulsory licence applicant to show that they have first made efforts to obtain a licence from the patentee on reasonable terms, and a proviso to Section 84(7) specifically addresses anti-competitive practices by providing that where the Controller is satisfied that the patentee’s conduct has been anti-competitive, this consideration may be taken into account in determining the royalty payable. Section 89 of the Patents Act goes further, listing specific purposes for which compulsory licences are granted, including the remedying of practices that are determined to be anti-competitive after a judicial or administrative process. Section 140 voids certain conditions in licence agreements, including conditions preventing challenges to patent validity.

The critical question – whether these Patents Act provisions constitute a “complete code” for addressing anti-competitive conduct by patentees, displacing the CCI’s general jurisdiction under the Competition Act was the precise question that the Delhi High Court resolved differently in 2016 and in 2023.

The Genesis of the Dispute  – Micromax and Intex Before the CCI

The Indian SEP-competition law dispute has a specific and well-documented origin. Ericsson, the Swedish telecommunications equipment and patent company, holds a large portfolio of patents declared essential to 2G GSM, 3G WCDMA, and 4G LTE standards. Following its pattern in other markets, Ericsson approached Indian smartphone manufacturers Micromax Informatics Limited, Intex Technologies (India) Limited, iBall, and others  seeking to negotiate FRAND patent licence agreements for their implementation of cellular standards in their handsets. When negotiations failed to produce agreed licences, Ericsson filed infringement suits in the Delhi High Court seeking interim injunctions and directions for payment of interim royalties.

Micromax and Intex responded by filing information before the Competition Commission of India under Section 19 of the Competition Act, 2002, alleging that Ericsson was abusing its dominant position in the relevant markets for 2G GSM and 3G WCDMA standard essential patents. In Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson, Case No. 50/2013, order dated 12 November 2013, the CCI recorded a prima facie finding that Ericsson enjoyed complete dominance in the relevant product markets defined as the markets for licensing 2G GSM and WCDMA SEPs because there is no possibility of using non-infringing technology once a standard incorporating those patents is implemented. Dominance, on the CCI’s analysis, was established by the simple structural fact of SEP status: an implementer who must implement the standard has no alternative to the SEP, and the SEP holder therefore enjoys absolute market power over that implementer. The CCI directed its Director General to investigate Ericsson’s conduct, specifically the allegations that Ericsson charged royalties calculated as a percentage of the end-product price rather than being linked to the value of the patented technology, that Ericsson applied discriminatory rates to different licensees, that Ericsson refused to disclose its FRAND licensing terms to potential licensees, and that Ericsson used the threat of injunctive relief to coerce acceptance of non-FRAND terms. In Intex Technologies (India) Ltd. v. Telefonaktiebolaget LM Ericsson, Case No. 76/2013, order dated 16 January 2014, the CCI issued a materially identical prima facie order in Intex’s complaint, again directing DG investigation.

These CCI prima facie orders raised an immediate conflict with the ongoing Delhi High Court patent infringement proceedings. Ericsson had secured interim injunctions and interim royalty payment orders from the Delhi High Court. Micromax and Intex were simultaneously filing competition complaints before the CCI, claiming that the very licensing conduct subject to those court proceedings constituted an abuse of dominant position. The procedural tension was compounded by the pendency of patent validity challenges before the Intellectual Property Appellate Board (IPAB). Three different forums were simultaneously engaged with different facets of the same underlying dispute patent infringement, competition law abuse, and patent validity.

Ericsson I  The 2016 Single Bench Ruling  CCI Has Jurisdiction

Ericsson challenged the CCI’s jurisdiction by filing writ petitions before the Delhi High Court, arguing that the Patents Act, 1970, is a special statute governing patent licensing, that the Section 3(5)(i) exception in the Competition Act preserves a patent holder’s right to impose reasonable conditions for protecting patent rights, and that the CCI therefore has no jurisdiction to investigate or adjudicate the licensing conduct of a patentee. The Single Bench of the Delhi High Court, in Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India, W.P.(C) Nos. 464/2014 and 1006/2014, decided 30 March 2016, dismissed Ericsson’s challenge and held that the CCI does have jurisdiction to investigate patent licensing conduct that is alleged to constitute an abuse of dominant position.

The 2016 Single Bench’s reasoning proceeded on two principal grounds. First, the court held that a patentee is not exempt from competition law merely by virtue of holding a patent. The Section 3(5)(i) exception protects the imposition of “reasonable conditions” for protecting patent rights, but it does not protect unreasonable or anti-competitive conditions imposed by a dominant patentee to exploit the lock-in created by SEP status. Second, the court applied the principle of harmonious construction finding that the Patents Act and the Competition Act can be read together without conflict, because they address different aspects of patent licensing conduct: the Patents Act governs the substantive rights of patentees and the compulsory licensing framework, while the Competition Act governs the market consequences of conduct that goes beyond legitimate rights exercise. The court explicitly held that supra-competitive royalty demands, the imposition of unreasonable licensing conditions, and the use of the threat of injunctive relief as leverage to coerce non-FRAND terms could in principle constitute abuse of dominant position under Section 4 of the Competition Act, and that the CCI was the appropriate forum for investigating such conduct. The court also held, applying the Supreme Court’s ruling in Competition Commission of India v. Bharti Airtel Limited, (2019) 2 SCC 521 (though this ruling came later), that the pendency of infringement suits before the Delhi High Court did not oust the CCI’s jurisdiction, since the causes of action before the two forums were different. The 2016 ruling was understood to confirm a concurrent jurisdiction model both the Delhi High Court for patent infringement, and the CCI for competition abuse, could proceed in parallel. Ericsson appealed.

The Parallel Patent Infringement Track  Intex v. Ericsson 2023 (FRAND and Injunction)

 While the CCI jurisdiction writ appeals were pending, the patent infringement suit itself proceeded through the Delhi High Court. The Division Bench of the Delhi High Court decided Telefonaktiebolaget LM Ericsson (Publ) v. Intex Technologies (India) Ltd., FAO(OS)(COMM) 296-297/2018, decided 29 March 2023 (2023:DHC:2243-DB)  the appeal from the Single Judge’s interim injunction order in the infringement proceedings. This ruling is analytically distinct from the CCI jurisdiction ruling of July 2023, though both arise from the same underlying dispute and were both decided by Division Benches in the same year.

The March 2023 Division Bench confirmed the Single Judge’s finding that Ericsson’s eight suit patents were prima facie valid, essential to the relevant cellular standards, and prima facie infringed by Intex’s handsets. The Division Bench upheld the grant of interim injunctive relief, rejecting Intex’s argument that a SEP holder is never entitled to injunctive relief against an unwilling licensee a proposition derived from the CJEU’s framework in Huawei Technologies Co. Ltd. v. ZTE Corp., Case C-170/13, decided 16 July 2015, which conditioned SEP holder injunctions on compliance with specific procedural steps including a prior FRAND offer. The Delhi High Court held that the CJEU’s Huawei v. ZTE framework, while influential and deserving of serious consideration, does not mechanically apply in Indian proceedings  Indian courts retain the discretion to grant interim relief in SEP cases where the implementer is found to be an unwilling licensee, and Intex’s conduct in filing CCI proceedings and IPAB validity challenges in the middle of licensing negotiations was itself characterised by the court as evidence of unwillingness to take a licence on reasonable terms. The March 2023 Division Bench also held, in a passage of significant practical importance, that Intex’s filing of the CCI complaint while simultaneously being in licensing negotiations with Ericsson, and while the infringement proceedings were pending before the Delhi High Court, constituted a dilatory tactic rather than a genuine assertion of competition law rights, and that the CCI complaint did not affect the court’s assessment of interim relief in the infringement proceedings. The court noted that in the CCI complaint itself, Intex had admitted that there were no non-infringing alternatives to Ericsson’s SEPs  an admission that the court treated as relevant to both the essentiality and dominance aspects of the dispute.

Ericsson II – The July 2023 Division Bench – Patents Act Prevails Over Competition Act

 The definitive ruling on the CCI jurisdiction question came from the Division Bench of the Delhi High Court in Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India, LPA 246/2016, LPA 150/2020, LPA 550/2016, and W.P.(C) 8379/2015, decided 13 July 2023 (2023 SCC OnLine Del 4078). This judgment Ericsson II in the commentary’s terminology reversed the 2016 Single Bench ruling and held that the Patents Act, 1970, prevails over the Competition Act, 2002, in matters concerning the exercise of patent rights by a patentee, and that the CCI does not have jurisdiction to investigate and adjudicate alleged anti-competitive conduct by a patentee arising from the exercise of those patent rights.

The Division Bench’s reasoning operated through three distinct but reinforcing lines of analysis. The first was the principle of generalia specialibus non derogant the rule that general legislation does not derogate from specific legislation. The Patents Act, the court held, is special legislation specifically governing the rights and obligations of patent holders, the licensing framework for patents, and the remedies available when licensing conduct is alleged to be unreasonable or anti-competitive. Chapter XVI of the Patents Act, with its compulsory licensing framework under Section 84, its anti-competitive practices provisions, and its Controller’s powers to investigate and determine reasonable licensing terms and royalty rates, constitutes a special and complete code for addressing the very conduct that the CCI was being asked to investigate. The Competition Act, by contrast, is general legislation applying across all markets and enterprises. Where a special statute provides a complete regulatory framework for a specific category of conduct, the general statute does not apply. The court applied the complementary principle of lex posterior derogat priori the rule that a later statute prevails over an earlier one in cases of conflict noting that Chapter XVI of the Patents Act, as amended in 2003, is later in time than the original Competition Act of 2002, and further supports the conclusion that Parliament intended the Patents Act’s patent-specific framework to govern.

The second line of analysis concerned the Section 3(5)(i) proviso in the Competition Act itself. This provision expressly states that nothing in Section 3 of the Competition Act shall restrict the right of any person to restrain any infringement of, or to impose reasonable conditions necessary for protecting, any rights granted under the Patents Act. The Division Bench interpreted this proviso not merely as a defence to Section 3 liability but as a marker of Parliament’s deliberate intention to preserve the Patents Act framework’s primacy in matters of patent rights exercise  including licensing terms and royalty rates. The court rejected the Single Bench’s harmonious construction approach, holding that where there is a genuine conflict between the two statutes’ jurisdictional reach, harmonious construction cannot resolve it and the lex specialis principle must apply.

The third line of analysis was institutional competence. The Division Bench held that the determination of what royalty rate is “fair, reasonable, and non-discriminatory” for a standard essential patent requires deep and specific expertise in patent law, claim construction, essentiality analysis, and the economics of technology licensing expertise that the Controller of Patents, as a specialist tribunal under a specialist statute, possesses, and that the CCI, as a general competition regulator, does not. Allowing the CCI to independently determine FRAND terms would risk creating inconsistency with the Delhi High Court’s FRAND determinations in infringement proceedings and with the Controller’s compulsory licensing determinations, fragmenting what the Division Bench regarded as a coherent statutory scheme under the Patents Act.

The consequence of the July 2023 ruling was clear and immediate: the CCI’s investigation of Ericsson’s patent licensing conduct which had been underway for approximately ten years following the 2013 prima facie orders was held to be outside the CCI’s jurisdiction. The Director General’s investigation reports, whatever conclusions they had reached, could not be the basis of any CCI order directing Ericsson to modify its licensing conduct or pay penalties. A complainant alleging that a SEP holder’s licensing terms are unfair or anti-competitive must now approach the Controller of Patents under Chapter XVI of the Patents Act, either through a compulsory licensing application under Section 84 or through the revocation and challenge mechanisms available in that Chapter, rather than through the CCI’s abuse-of-dominance route.

The Monsanto Parallel  Agricultural Patents and Competition Law

The July 2023 Division Bench ruling addressed not only Ericsson’s appeals but also a related challenge brought by Monsanto Holdings Private Limited against CCI proceedings concerning Monsanto’s licensing of patents for Bt cotton technology in India. Monsanto held patents over the Cry2Ab gene used in herbicide-tolerant cotton varieties, and had been the subject of CCI investigation on allegations by seed companies that its royalty rates and licensing conditions for sub-licensing the patented technology were anti-competitive and abusive. The CCI’s investigation of Monsanto raised the same jurisdictional question as the Ericsson proceedings whether the Patents Act’s specialist framework displaced the CCI’s general competition law jurisdiction in the context of agricultural biotechnology patents rather than telecommunications SEPs. The Division Bench consolidated Monsanto’s appeal with Ericsson’s and applied the same reasoning to hold that the Patents Act prevailed over the Competition Act in respect of Monsanto’s patent licensing conduct as well, confirming the ruling’s application beyond the specific SEP and FRAND context to patent licensing generally.

The CJEU Huawei v. ZTE Framework and Its Indian Reception

The international benchmark against which Indian SEP jurisprudence must be assessed is the CJEU’s decision in Huawei Technologies Co. Ltd. v. ZTE Corp. and ZTE Deutschland GmbH, Case C-170/13, decided 16 July 2015. The CJEU addressed the conditions under which a SEP holder who has given a FRAND commitment can seek an injunction against an implementer without that injunction constituting an abuse of dominant position under Article 102 of the Treaty on the Functioning of the European Union. The Court held that a SEP holder is entitled to seek an injunction against an unwilling licensee, but only where it has complied with specific procedural obligations: it must have alerted the implementer of the infringement by identifying the SEPs and specifying the way in which they have been infringed, and it must have presented a written FRAND offer specifying the royalty and the way in which that royalty is to be calculated, after the implementer has expressed willingness to conclude a licence. An implementer who diligently negotiates and makes a counter-offer in good faith is protected from injunctive relief during that negotiation process.

The Huawei v. ZTE framework has been adopted, in adapted forms, by courts in Germany, the United Kingdom, and other EU jurisdictions as the governing standard for SEP injunctions in the competition law context. Indian courts most explicitly in the March 2023 Intex v. Ericsson Division Bench have engaged with the Huawei v. ZTE framework carefully but declined to adopt it mechanically, holding that it does not automatically apply in Indian proceedings and that Indian courts retain discretion to assess the conduct of both the SEP holder and the implementer in determining whether interim relief is appropriate. The Division Bench’s finding that Intex’s recourse to the CCI during ongoing licensing negotiations was itself evidence of unwillingness to take a FRAND licence implicitly departs from the CJEU’s framework, under which the filing of competition complaints is treated as consistent with good-faith licensing conduct rather than as evidence against it.

The Role of Section 84  Compulsory Licensing as the Competition Valve

With the CCI’s jurisdiction having been displaced by the July 2023 Division Bench ruling, the primary mechanism through which an implementer can challenge a SEP holder’s licensing terms as anti-competitive is now the compulsory licensing route under Section 84 of the Patents Act, 1970. Section 84(1) permits any person to apply for a compulsory licence after three years from the date of grant of the patent if the reasonable requirements of the public with respect to the patented invention have not been satisfied, the patented invention is not available at a reasonably affordable price, or the patented invention is not worked in the territory of India. Section 84(7)(e) specifically includes among the circumstances indicating that reasonable requirements of the public have not been satisfied the case where the patentee has imposed conditions upon or has made conditions in any licence granted by him which are not reasonable or are not in the public interest, including conditions of the type described in Section 140 of the Act.

The compulsory licensing route has significant limitations as a substitute for competition law enforcement in the SEP context. A compulsory licence application can only be filed three years after patent grant, meaning that newly granted SEPs are immune from this mechanism for an initial period. The process before the Controller is slower and more technically demanding than the CCI’s investigation procedure. The Controller’s determination of a reasonable royalty rate is specific to the individual patent and applicant, without the CCI’s market-wide corrective authority. And the proviso to Section 84(7) that addresses anti-competitive practices contemplates a prior judicial or administrative finding of anti-competitive conduct which, following the July 2023 ruling, is now considerably harder to obtain given the displacement of CCI jurisdiction.

Practical Implications for SEP Holders and Implementers in India

The combined effect of the 2023 Ericsson rulings for the Indian SEP ecosystem is significant and requires immediate recalibration of enforcement and defence strategy on both sides of the licensing table.

For SEP holders, the July 2023 ruling substantially reduces the competition law litigation risk that had hung over Indian SEP licensing since the CCI’s 2013 prima facie orders. The threat that FRAND licensing conduct could be investigated and penalised by the CCI with the attendant risk of significant penalties under Section 27 of the Competition Act, directions to modify licensing terms, and the reputational and commercial disruption of a years-long regulatory investigation has been materially reduced, though not entirely eliminated given the possibility that a Supreme Court appeal might restore some form of concurrent jurisdiction. SEP holders negotiating licences with Indian smartphone manufacturers or other implementers can now take the position that the appropriate forum for any dispute about FRAND terms is the Delhi High Court in the context of infringement proceedings, or the Controller of Patents through a compulsory licence application, rather than the CCI. The March 2023 Intex Division Bench’s characterisation of an implementer’s CCI complaint as evidence of unwillingness to take a licence provides SEP holders with a specific precedential argument against implementers who deploy CCI filings as a negotiating tactic during licensing negotiations.

For implementers smartphone manufacturers, chipset producers, and others who must implement cellular standards in their products the July 2023 ruling removes what had been the most practically accessible and commercially powerful route to challenging alleged FRAND abuse. The CCI investigation mechanism offered a relatively rapid, low-cost, and potentially market-wide corrective mechanism. Its displacement in favour of the Controller of Patents’ compulsory licensing route places a significantly greater procedural and financial burden on implementers seeking to challenge SEP holder conduct. Implementers should reassess their negotiating strategy accordingly, building contemporaneous documentation of FRAND negotiations that can be relied upon in both infringement proceedings and any subsequent compulsory licence application, and should be cautious about filing CCI complaints during ongoing licensing negotiations given the risk that such filings will be treated as evidence of bad faith in parallel patent proceedings.

The Supreme Court – The Question That Remains Open

The July 2023 Division Bench ruling has, as of the current date, been challenged before the Supreme Court of India. Several implementers and the CCI itself have filed Special Leave Petitions raising the fundamental constitutional and statutory questions that the Division Bench’s lex specialis reasoning leaves open. Is it constitutionally permissible for a special statute to entirely displace a general constitutional-level competition watchdog’s jurisdiction? Does the Section 3(5)(i) proviso in the Competition Act mean what the Division Bench said it means, or is it better read as a limited defence to anti-competitive agreement liability rather than a wholesale jurisdictional displacement? Does the Patents Act’s Chapter XVI genuinely constitute a “complete code” for addressing anti-competitive SEP licensing when the compulsory licensing provisions were drafted decades before SEPs existed as a legal category?

These questions are live and pending. Until the Supreme Court delivers a final ruling, the July 2023 Division Bench remains the operative precedent, and practitioners must advise accordingly. But the Supreme Court’s eventual determination whichever direction it points will settle one of the most consequential institutional design questions in Indian IP and competition law: whether the country that is home to the world’s second-largest telecommunications network will rely on a patent-specialist tribunal or a market-regulating competition authority to police the most commercially significant area of patent licensing in the modern economy.

Conclusion

The decade-long collision between competition law and patent licensing in India, catalysed by Ericsson’s SEP enforcement against Micromax and Intex and culminating in the Delhi High Court’s twin 2023 rulings, has produced a body of jurisprudence that is both analytically rich and practically consequential. The March 2023 Division Bench ruling in the infringement proceedings confirmed that SEP holders can obtain interim injunctive relief against unwilling licensees, that the CJEU’s Huawei v. ZTE framework does not mechanically govern Indian proceedings, and that CCI filings during licensing negotiations may be treated as evidence of unwillingness to take a FRAND licence. The July 2023 Division Bench ruling on CCI jurisdiction established that the Patents Act prevails over the Competition Act in matters of patent rights exercise, displacing the CCI’s decade-long investigation of Ericsson’s licensing conduct and redirecting future challenges to the Controller of Patents under Chapter XVI.

Whether these rulings represent the correct resolution of the institutional design question whether the Controller of Patents is genuinely better placed than the CCI to police FRAND abuse by dominant SEP holders  is legitimately debatable. The compulsory licensing route under Section 84 was not designed for SEP licensing disputes, lacks the CCI’s market-wide corrective authority, and imposes greater procedural burdens on implementers who are already locked into a technology standard by the very fact of market participation. The Supreme Court’s eventual ruling on the pending SPLs will determine whether India’s approach aligns with the broadly concurrent model adopted by competition authorities in the European Union, the United Kingdom, and the United States, or whether India charts a uniquely patent-centric course that concentrates SEP licensing oversight in the specialist patent administration rather than the competition regulator. For now, the law as settled at the High Court level requires practitioners, SEP holders, and implementers alike to navigate a landscape in which the familiar CCI route has been closed, the Controller of Patents route remains underused and procedurally demanding, and the Delhi High Court remains the central arena for FRAND determination in India.

References

1. Patents Act, 1970  Sections 84, 89, 140, Chapter XVI – https://ipindia.gov.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf
2. Competition Act, 2002  Sections 3, 4, 3(5)(i) –  https://legislative.gov.in/sites/default/files/A2003-12.pdf
3. Telefonaktiebolaget LM Ericsson v. CCI, 2023 SCC OnLine Del 4078, Delhi High Court Division Bench, 13 July 2023 – https://indiankanoon.org/doc/116895781/
4. Telefonaktiebolaget LM Ericsson v. Intex Technologies, 2023:DHC:2243-DB, FAO(OS)(COMM) 296-297/2018, Delhi High Court Division Bench, 29 March 2023 – https://indiankanoon.org/doc/84641416/
5. Telefonaktiebolaget LM Ericsson v. CCI, W.P.(C) Nos. 464/2014 and 1006/2014, Delhi High Court Single Bench, 30 March 2016 –  https://indiankanoon.org/doc/164770226/
6. Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson, CCI Case No. 50/2013, order dated 12 November 2013  – https://www.cci.gov.in/antitrust/orders/details/168/0
7. Competition Commission of India v. Bharti Airtel Limited, (2019) 2 SCC 521 – https://main.sci.gov.in/judgment/judis/48742.pdf
8. CJEU  Huawei Technologies Co. Ltd. v. ZTE Corp., Case C-170/13, 16 July 2015 –  https://curia.europa.eu/juris/liste.jsf?num=C-170/13
9. WIPO  Standard Essential Patents and FRAND Licensing – https://www.wipo.int/sme/en/ip_business/licensing/standards.htm
10. DPIIT  National IPR Policy 2016 – https://dpiit.gov.in/sites/default/files/National_IPR_Policy_English.pdf
11. CCI  Official Orders Portal  – https://www.cci.gov.in
12. Delhi High Court  Intellectual Property Division Judgments  – https://delhihighcourt.nic.in

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