Mobile phone patent wars likely to intensify in India, industry ministry adviser says

Smartphones

6 December 2016.

The patent wars among global mobile phone makers are likely to intensify in India, and the Competition Commission of India, or CCI, will also look into anticompetitive conduct by patent holders, an adviser to the Indian government has said.

Seema Gaur, an economic adviser at the Department of Industrial Policy and Promotion, which operates under India’s Ministry of Industry and Commerce, told a conference in Hong Kong that more smartphone patent clashes were expected, given India’s huge and fast-growing market.

“The CCI has become and is likely to [remain] a parallel venue to look into anticompetitive conduct by patent holders,” in addition to the courts, she said.

In 2014, for instance, Ericsson filed a complaint against Chinese phone maker Xiaomi, claiming infringements of its standard-essential patents at an Indian high court. The CCI is also looking at several dominance abuse cases, including a complaint filed by Micromax against Ericsson.

But Gaur said that although jurisdictions such as the EU and the US focused primarily on whether injunctions should be available to standard essential patent holders that commit to fair, reasonable and non-discriminatory, or Frand, terms, matters in India focused on the charging of excessive or discriminatory royalties and the use of non-disclosure agreements.

She said that injunctions were currently available in Frand-SEP cases, but were not assured.

“India’s Frand jurisprudence is at a nascent stage, and will be shaped by decisions by the CCI and courts on key issues,” Gaur said. “It will be interesting to see how the interplay of patents and anticompetitive behavior is interpreted by courts in India.”

She also noted that in merger reviews, potential hindrances to innovation were also becoming an increasing concern in intellectual property rights-related merger cases.

The CCI stipulates that in pharmaceuticals sector merger cases involving non-compete clauses, such clauses could cover only products either being presented manufactured or under development, and that they must ensure no adverse impact on innovation of the introduction new or better products.

	Eliot Gao