Page 17 - A&A Patents&Design Rewind-2016

Finally in Section 11 of the Paper entitled “Issues
for Resolution” 13 issues have been put forward,
including but not limited to determination of
royalty, setting up of SSOs and determination
of their functioning, on which the opinions and
suggestions of the public have been sought so as
to start a momentum for a major change in the
field much warranted due to the recent scenario.
The discussion paper invited answers to various
questions raised therein. Anand & Anand’s (AA)
take on them, aiming towards a desired resolution,
are as follows:
a) Whether the existing provisions in the various
IPR related legislations, especially the Patents
Act, 1970 and Anti-
The paper specially talks Trust legislations, are
about why FRAND terms adequate to address the
are important and necessary issues related to SEPs
with a view to bridging the and their availability
gap between the law makers on FRAND terms? If
and the layman beginning with not, then can these
the Role of SEPs in India’s IPR issues be addressed
regime and its effects on India’s through appropriate
anti-competitive laws. amendments to such
IPR related legislations?
If so, what changes
should be affected?
AA Proposition: In a set of technical standards,
there are multiple patents which are essential
to the standards. However the importance of
each SEP can vary considerably depending on
various factors. Though each SEP has some
characteristics, it is in essence a patent and
therefore, should be protected by the Patents
Act.
Despite a degree of conflict that exists
between the Competition law and the IP law,
both the laws aim to encourage innovation,
increase efficiency and safeguard the interests
of consumers and the general public. The
Competition law applies not to the legal
exercise of IP rights, but rather to the abuse
of IP rights with an aim of eliminating or
restricting competition. Therefore, whether
an IP-related conduct excludes or restricts
competition is the key factor in deciding
whether the competition law should intervene
in the relevant act. Therefore, proper
application of Competition law on SEPs can
protect competition and encourage innovation
and excessive and improper application may
curb innovation and competition, which
conflicts with the fundamental principle and the
legislative intent of the competition law.
Official organs can undertake rational analysis
in assessing each case under the framework
of Competition Law with regard to the actual
patent licensing situation, market competition
status and other factors. It is not necessary to
establish special provisions for SEP and their
availability on FRAND terms.
b) What should be the IPR policy of Indian
Standard Setting Organizations (SSOs) in
developing Standards for Telecommunication
sector and other sectors in India where SEPs
are used?
AA Proposition: The SSO can stipulate general
rules of IPR policy, e.g., encouraging their
members to disclose in a timely manner the
standard-essential patents that they or other
parties own, grant license on FRAND/RAND
terms and conditions with respect to their
SEPs.
However, it is not proper to go into great details
when establishing the IPR policy. It is difficult
and inappropriate to introduce complex issues
to the IPR policy, e.g., calculation of royalty
rate and determination of FRAND terms.
The parties can seek to resolve disputes on
these complex issues through arbitration or
litigation.
At the same time, care should be taken to
ensure that the SSOs adopt positions that are
not vastly different from global SSOs such as
3GPP amongst others to avoid unintentionally
isolating Indian technical development from
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