- Research/Scholar Paper name – “Standard Essential Patents in Indian Context: A Legal Conundrum”
- Author: Shreya Pandey
- Institution: Symbiosis Law School, Hyderabad
- Affiliation: Centre for Study of Contemporary Legal Issues
- Date of Publication: 04/10/2021
With the accession to TRIPS, Indian IP regime has been consolidated to resolve the new challenges and promote a harmonious balance between protection and incentivizing innovation & creativity and a strong public policy framework. One among the others intensively debated issues Standard Essential Patents. SEP forms the cornerstone of the economic growth and technological development. Therefore, in the present context it becomes important to understand whether the existing legal machinery, especially the Patents Act, 1970 and the Anti-trust legislation are sufficient to address the issues pertaining to SEP’s and effective in facilitating their availability on FRAND terms. Moreover, there exist no set standards on the basis of which royalty rates in SEP must be decided and dilemma exist between Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion. The practice of Cross-licensing adds on to the existing confusion around the implementation of FRAND terms and determining the threshold for the same. Yet another pertinent question posed before the stakeholders, especially the implementers in the recent times is regarding the patent that has been declared as an SEP being an Essential Patent or not. This has given rise to lot of arbitrary practices among competitors in the market. Moreover, the use of alternative technology has revolutionized the way the Standard Essential Patent is perceived and brought to use.
The paper identifies and summarizes necessary aspects of dealing with SEPs on FRAND terms. It analyses some of the inefficiencies attached to the standards and discusses the possible solution to those challenges along with studying the linkage between standards and patents. The paper also aims to highlight the constantly evolving jurisprudence with respect to SEPs with the help of case laws. Further, the paper illustrates the struggles of existing public policy in India to implement and establish fair and effective standard patent regime. The paper throws light on a structured framework and provides for suggestions and recommendations for India’s FRAND jurisprudence and maintaining a balance between patentee’s exclusive right and public interest.