Introduction

The debate on the interplay between competition law and intellectual property (IP) rights (IPRs) in India has continued to draw attention. In addition to dealing with questions of jurisdiction and addressing disputes dealing with fair, reasonable and non-discriminatory (FRAND) terms, the Competition Commission of India (CCI) has increasingly focused its attention on issues such as the impact of standard-setting on competition; and the use (or abuse) of IP-related judicial processes by dominant enterprises to stifle competition.

The general prohibition on anticompetitive agreements² and abuse of dominance³ under the (Indian) Competition Act, 2002 (the Competition Act) applies equally to IP-related business practices as it would to non-IP-related conduct. The only reference to IP in the Competition Act is through an express carve-out that recognises the right of any person to impose reasonable and necessary conditions for protecting IP, specifically conferred under certain identified Indian IP statutes in the context of anticompetitive agreements.⁴ This carve-out does not, however, extend to unilateral conduct, therefore IP holders are at a greater risk of scrutiny under the abuse-of-dominance provision in Section 4 of the Competition Act.

In this chapter, we provide:

1. a brief overview of Indian jurisprudence on IP and antitrust;
2. issues surrounding antitrust and licensing in India;
3. the international debate surrounding the standard-selection process and the way the CCI (and where applicable, the appellate tribunal) has interpreted competition claims arising out of standards while issuing prima facie orders;⁵
4. the circumstances under which transfer of IP could be viewed as a transfer of assets under the merger control provisions in Section 5 of the Competition Act;⁶ and
5. the emerging jurisprudence involving IP-related vexatious litigation leading to abuse-of-dominance claims before the CCI.

Significantly, The Competition (Amendment) Act, 2023 (2023 Act) was passed in April 2023 and will be enforceable once the government notifies it. The proposed amendment to exempt ‘dominant’ IP owners from charges of abuse of dominance,⁷ (Proposed Amendment) as suggested by the Parliamentary Standing Committee on Finance, has not been included in the 2023 Act. Thus, this carve-out may still only be asserted as an exemption against charges of anticompetitive conduct but not abuse of dominance.

Because the Proposed Amendment has not been included in the 2023 Act, India on this aspect continues to differ from antitrust jurisprudence in jurisdictions like the European Union and the United States. With respect to anticompetitive conduct, the CCI has in the past been careful in granting the benefit of this carve-out, clarifying that its assertion is not absolute.⁸ The CCI’s decisional practice in the OPPO Mobiles case⁹ appears to affirm this view, including in the context of restrictions on online sales, where the CCI notes that owning IP does not, in and of itself, justify the imposition of exclusivity restrictions. On the other hand, non-compete restrictions on a distributor, with a view to ‘stop the leakage of IP’ to a limited set of the manufacturer’s competitors which are familiar with Vivo’s technology, was considered reasonable.¹⁰

Recently, the Delhi High Court’s decision in Monsanto Holdings Private Limited & Ors. v. CCI & Ors¹¹ (Monsanto Decision) has been relied upon by the Delhi High Court and the CCI to hold that there are no embargos on the CCI’s powers or jurisdiction in relation to IP-related rights.¹²

The CCI has been careful in dealing with cases involving licensing of inputs. The CCI directed investigation into GMR Hyderabad International Airport Limited (GMR) for its refusal to renew Air Works India Engineering Private Limited’s (Air Works) licence agreement (in favour of its wholly-owned line operating services entity), disabling the latter from carrying out line maintenance services (Air-Works-GMR case).¹³ The CCI noted that the licensing arrangement to Air Works was a ‘necessary input’ for providing line maintenance services, without which Air Works was unable to compete in the relevant market ‘for provision of access to airport facilities/premises at the Rajiv Gandhi International Airport’ operated by GMR. Acknowledging that every ‘refusal to deal’ does not qualify as anticompetitive, the CCI identified three conditions, upon the satisfaction of which, a refusal to deal would qualify as anticompetitive:

1. where refused input is indispensable for an entity to compete in the downstream market;
2. where it would likely eliminate competition in the downstream market; and
3. where it would damage consumers.

Similarly, in November 2018, the CCI also directed investigation into Intel Corporation for its refusal to provide access to its reference design files to the complainant.¹⁴ These files were allegedly required to manufacture server boards that had been built on Intel’s designs. The CCI ultimately dismissed the allegations against Intel and, among other things, observed that:

1. the resources that were required for designing a server model could be easily downloaded from Intel’s publicly accessible ‘resource data centre’;
2. in the cases of the other products that Intel developed, it did not develop any reference designs and therefore, could not have denied any access for these files; and
3. there was no deliberate denial of any requisite file (reference design file or simulation file) by Intel to the informant.

In November 2021, the CCI released its key findings and observations of its market study on the pharmaceutical sector in India.¹⁵ In this market study, the CCI, among other things, observed that patented and originator drugs are insulated from competition for the life of the patent to yield an assured return on research and development investments, after expiry of the patent protection, price competition from generic substitutes can generate significant cost savings for consumers, and generic drugs play an important part in creating competitive pressures the keep prescription drug prices low, thereby reducing healthcare costs and improving access to it treatments. To ensure that there exists price competition in the generics drugs market, the CCI has identified the need to homogenise the quality of drugs and has committed to use its advocacy programme to push for a multi-pronged and harmonised regulatory response.

The intersection of IP and antitrust in India is further examined below.

While the CCI appears to be scrutinising licensing terms closely, as examined below, it has also equally sought to balance IP with public interest.

i. Anticompetitive restraints

Restrictive terms in licensing arrangements may be examined as vertical restraints under Section 3(4) of the Competition Act. In the absence of a specific dispensation under the Competition Act for examining licensing arrangements, restrictions in licensing arrangements are treated within the same conceptual framework that applies to the sale of goods or provision of services under the Competition Act. Simply put, restrictions accompanying IP licensing arrangements are prohibited if they can result in an AAEC. The CCI is unlikely to reach a finding of AAEC unless the IP licensor enjoys significant market power.¹⁶ For instance, any attempt by an IP licensor to determine pricing decisions (for the licensed IP) of the IP licensee would be scrutinised as a potential ‘resale price maintenance’ arrangement.¹⁷

Similarly, territorial or customer-specific restrictions imposed by IP licensors as part of a licensing arrangement (e.g., a restriction from broadcasting licensed content beyond a certain territory or to a specified group of viewers) may be scrutinised as an anticompetitive ‘exclusive distribution’¹⁸ or ‘refusal to deal’ arrangement.¹⁹

An IP licensor may also restrict its licensees from dealing with a competing licensor, a restriction that would be examined as a potentially anticompetitive ‘exclusive supply’ arrangement.²⁰ Any attempt by a licensor to make the grant of its licence conditional on the licensee purchasing other products or services of the licensor may be examined as a potentially anticompetitive ‘tie-in’ arrangement.²¹

As discussed earlier, the Competition Act provides a limited carve-out allowing IP owners to impose restrictions, including restrictions accompanying their licensing arrangements, that are both reasonable and necessary to prevent the infringement of their existing IP. This statutory exemption may be legitimately invoked when the restriction imposed is necessary to protect the domestically registered and recognised IP and is reasonable (i.e., the restriction is the least restrictive way of asserting the relevant IP). The CCI has recognised the legitimate exercise of this carve-out sparingly. In many of its decisions, the CCI has found that the restriction in question that was challenged as an anticompetitive restraint was either not necessary²² or unreasonable²³ for protecting the owners’ IP.

The CCI, however, has granted the benefit of this carve-out in cases where it found that the IP holder had legitimate reasons to impose these restrictions to protect the IP. For example, in K Sera Sera Digital Cinema Private Limited v. Pen India Limited & Ors,²⁴ the CCI dismissed a complaint initiated by a digital cinema service provider against two movie producers and digital cinema service providers for refusing to provide the content of a movie to the informant. Referring to the carve-out, the CCI held that the producers appeared to have valid reasons to refuse to exhibit their movie through the informant’s digital service owing to piracy concerns raised by other producers. The producers were legitimately exercising precautionary steps to prevent losses on account of piracy and therefore benefited from the IP carve-out under the Competition Act.

The CCI’s decisional practice therefore appears to suggest that the assertion of this carve-out in respect of restrictions arising from IPRs will be examined carefully by the CCI to satisfy the elements of ‘reasonable’ and ‘necessary’.

ii. Refusals to license

A refusal to license can equally be scrutinised as an abuse of dominance under Section 4 of the Competition Act if it results in a denial of market access,²⁵ restricts the production of goods or services²⁶ or restricts the technical or scientific development relating to goods or services.²⁷ In the Air Works-GMR case,²⁸ the CCI initiated investigation against GMR for allegedly refusing to renew Air Works’ licence for setting up, operating and maintaining the Airline Engineering Maintenance Office at Rajiv Gandhi International Airport. While the CCI noted that every refusal to deal would not contravene the Competition Act, a refusal to deal, where (1) refused input is indispensable or substitutable for an entity to compete in the downstream market; (2) refusal eliminated competition in the downstream market; and (3) refusal is likely to damage consumers, would likely qualify as an abuse of dominance.

Applying these principles in this case, the CCI observed that access to airport facilities qualified as an essential facility²⁹ for Air Works to provide third party services such as Line Maintenance Services³⁰ (i.e., the downstream market), which was controlled by GMR. The CCI observed that Air Works’ exclusion from the downstream market, in favour of its own subsidiary, distorted the level playing field. The CCI preliminarily concluded that the refused input (access to space at Rajiv Gandhi International Airport for providing maintenance services) is essential for downstream entities to be able to compete, and it directed the Director General to conduct an investigation against GMR.

The CCI reached a similar finding in the Auto Parts case, where it found each original equipment manufacturer (OEM) dominant in the after-market for the sale of their respective brand of spare parts. The OEM’s refusal to license their diagnostic tools to independent repairers and workshops was held as an abuse of dominance.

In Justickets Private Limited v. Big Tree Entertainment & Vista Entertainment (Big Tree-Vista case),³¹ conversely, the CCI dismissed allegations against BookMyShow (BMS) alleging anticompetitive conduct for denying, and then, delaying access to the application programming interface (API) necessary to facilitate booking movie tickets across movie theatres. BMS, the informant’s competitor, was the exclusive distributor of Vista’s API. The CCI (by way of a majority decision) held that requiring the informant to execute a non-disclosure agreement before accessing Vista’s API was legitimate, as the informant had also provided competing ticketing software. Accordingly, the CCI found the need for Vista to protect against the possibility of the informant reverse engineering the API, as well as accessing proprietary information of Vista or other movie ticket vendors, legitimate. The CCI accordingly held that a justifiable delay in licensing (here, protecting IP and not compromising competitive dynamics) may not qualify as a denial of market access. Each entity has a right to protect its own commercial interests.

Recently, the appellate tribunal (NCLAT) reversed a direction of the CCI³² mandating Google to provide access to its proprietary APIs (for functionality of mobile applications (Apps)) to developers of competing operating systems (OS).³³ The NCLAT while reversing the CCI’s direction held that: (1) the APIs in question are proprietary items of Google and cannot be given in through unhindered access to Google’s existing and potential competitors; and (2) proprietary software such as APIs, which are developed through scientific and technical innovation should fetch value to Google and, therefore, remain an incentive for a technological company or Google to further carry out such development and monetise it through its commercial use.

The CCI and NCLAT’s recent decisional practice appears to suggest that it is looking to strike a balance between the legitimate exercise of IP with consumer interest. Where there appear to be reasonable justifications for withholding a licence, the CCI and NCLAT will examine those carefully in their antitrust analysis.

iii. Unfair and Discriminatory Licensing

An IP licensor may be in a dominant position on account of its IP being indispensable for a segment of the market. In such a case, the terms of its licensing arrangements may be scrutinised for being potentially ‘unfair’ or ‘discriminatory’ and thus, abusive. For example, charging excessive royalty rates or charging different royalty rates to similarly placed customers may be viewed as an imposition of unfair or discriminatory prices and thus, an abuse of dominance.³⁴

In 2018, the CCI directed an investigation into Intel³⁵ refusing to license its design files to a manufacturer of server boards, Velankani Electronics Private Limited (VEPL). VEPL needed access to these design files to manufacture server boards that were created based on Intel’s design. Intel contended that its licensing arrangements with well-established original design manufacturers (ODMs) or OEMs that manufacture and design customised servers and server boards cannot be compared with the likes of VEPL. Intel also argued that it had provided VEPL with requisite documentation, materials and dedicated technical support per its agreement with VEPL and was not obligated to treat VEPL at par with well-established ODMs or OEMs or share its reference designs for server boards. Although the CCI disagreed with Intel’s arguments in its prima facie order, the CCI ultimately found that there was no deliberate denial of any file by Intel.³⁶

Similarly, the CCI initiated an investigation into Monsanto Inc, United States (MIU)³⁷ for imposing termination clauses in its agreements with its sub-licensees, which enabled it to terminate the licence agreement if the sub-licensee undertook the development of hybrid cotton planting seeds based on a trait obtained from a competitor of MIU. The CCI found that Monsanto discriminated between its associated companies and third-party seed manufacturers, where the former was not subject to the same stringent sub-licence terms as other seed manufacturers.

More recently, the NCLAT dismissed Verifone India Sales Private Limited’s (Verifone) appeal³⁸ against a CCI penalty order that found Verifone, a manufacturer of point-of-sale terminals, to have imposed ‘unfair and discriminatory conditions’ in its licensing agreements with Atos Wordline India Pvt Ltd (Atos). Before the NCLAT, Verifone contended that these terms were under negotiation at the time of the complaint and could therefore not form the basis of an investigation. NCLAT disagreed, observing that the language of the impugned licence agreement demonstrated that Verifone compelled Atos to sign the agreement. This, per the NCLAT, amounted to an abuse of dominant position by Verifone. The NCLAT also noted that the agreement was not as per prevailing industry standards, and Verifone’s agreements for supplying software developments kits was non-negotiable, and the intent of Verifone (based on email evidence) was to exploit the market for value added services (VAS) by restricting VAS providers from using any third party to develop or assist in developing any software using the licensed software, without obtaining prior permission from Verifone and thereafter disclosing confidential information, including the names of its customers.

The CCI’s approach towards ‘unfair’ licensing claims has been largely consistent with its approach on unfair pricing. The CCI adopts a cost-plus approach for determining whether the ‘price charged’ has a reasonable relation to the economic value of the product supplied.³⁹ For instance, the CCI’s investigation into MIU examines allegations for charging ‘unfair’ royalty rates to Indian seed companies in the supply of BT cotton hybrid technology. The amount recovered by MIU on account of royalty charges and trait value was found to be much greater than the expenses MIU incurred in developing BT cotton hybrid technology. Accordingly, the CCI did not find any basis for MIU charging high trait values.

i. Standard-selection process and antitrust

Industry standards are widely acknowledged to be one of the fundamental drivers of modern economy. Standards setting through stakeholder collaboration usually results in significant efficiencies, including the interoperability of standards, consumer safety, technological innovation and the introduction of performance standards in the market. While antitrust authorities have recognised the pro-competitive benefits of standardisation, the standard-selection process itself involves deliberation and communication between competitors that may raise potential antitrust concerns. For instance, coordination in a standard-selection process may lead not only to minimum price-fixing, but also to a buyers’ cartel in which the licensees (voting members of the standard-setting organisation) coerce patent holders to accept lower royalties in exchange for having their patents incorporated into a standard.⁴⁰

Apart from the coordination concerns involved in a standard-selection process, the adoption of industry standards involving IP may result in the creation of a standard-essential patent (SEP). Once a patent is included in a standard and is widely adopted, it grants absolute monopoly power to the SEP holder.⁴¹ The SEP holder is under an obligation to license on a FRAND basis and a failure to do so may qualify as an abuse of dominance. The task of an antitrust regulator is therefore not limited to adjudicating violation of FRAND commitments by SEP holders,⁴² but also extends to claims involving abuse of the standard-setting process. Globally, much of the antitrust litigation and controversy in relation to standard-selection processes has revolved around SEPs, and specifically patent hold-ups.⁴³

In India, the antitrust concerns surrounding standard-selection processes have also followed this trend. In Ericsson v. Micromax,⁴⁴ Ericsson sued Micromax, claiming damages worth approximately 1 billion Indian rupees, alleging that Micromax had refused to enter into a licensing agreement covering Ericsson’s patented innovations across several wireless technology standards after three years of negotiations failed to yield a licensing agreement. Micromax contested the claims, arguing that Ericsson was not licensing its SEPs on FRAND terms. Noting that the practices adopted by Ericsson were discriminatory and contrary to FRAND terms, the CCI directed the Director General to investigate Ericsson for any potential violation of the provisions of the Competition Act. This order of the CCI was challenged by Ericsson before the Delhi High Court, asserting that the CCI lacked jurisdiction to investigate. As the dispute was related to a claim of royalty by a patent-owner, the dispute fell squarely within the scope of the Patents Act. The Delhi High Court dismissed Ericsson’s challenge (Ericsson Decision).⁴⁵ It did not find any conflict between the antitrust and patent statutes. Instead, it found that remedies provided under the Patents Act (e.g., compulsory licensing) are distinguishable and not mutually exclusive with that under the Competition Act (which empowers the CCI to impose penalties for anticompetitive conduct). The Delhi High Court also observed that the legislature intended the Competition Act to apply in addition to other statutes. This decision has been extensively relied upon in the Monsanto Decision referred to above. Both the Ericsson and the Monsanto Decisions were appealed before a two-judge bench of the Delhi High Court and decisions in these appeals are awaited.⁴⁶

Although it is now somewhat settled that the CCI has the jurisdiction to examine allegations of anticompetitive conduct arising from ‘unfair or discriminatory’ licensing terms, it is yet to be determined whether competition authorities are best placed to determine what constitutes a ‘fair’ royalty, usually the remedy sought by the ‘exploited’ licensees. Remedies (arbitration proceedings under the Patents Act to fix FRAND rates and terms) and an elaborate recourse mechanism are available under the IP regime by the Controller of Patents, the Trademark Registry and the Intellectual Property Board. Moreover, Section 83(f) of the Patents Act restrains a patentee from ‘abusing’ its patent right and engaging in practices that unreasonably restrain trade. The Controller of Patents is empowered to direct ‘compulsory licensing’ where the patent holder refuses to grant licences, among other things, on reasonable terms. It may therefore be worth considering whether antitrust regulators are appropriately placed to investigate if an appropriate remedy lies within the realm of relevant IPR laws.

The Indian merger control regime requires the mandatory notification of all mergers and acquisitions that meet certain jurisdictional thresholds; these thresholds are assessed based on the sum of the acquirer and target company’s assets and turnover collectively. However, the question of whether the licensing of IPs constitutes the ‘acquisition’ or ‘transfer’ of assets (and consequently requires notification) has been the subject of some debate. Because IPs can be transferred through many methods, including through their assignment, exclusive licensing, non-exclusive licensing, sub-assignable licensing, for a limited duration or perpetually, the CCI has been called upon to identify situations where this licensing might require merger notification. The CCI has now clarified⁴⁷ through its decisional practice that the licensing of an IP will not in itself constitute a transfer or acquisition if the licence is demonstrably non-exclusive – both as a matter of law (de jure) and as a matter of fact (de facto). The licensor must, among other things, establish that it itself continues to use the IP, or indeed license out the IP to others for wider use; and that the licence is not exclusive, irrespective of terminology used in the licence agreements. As a corollary, IP licences that do not meet this test, either de jure or de facto, will be treated as asset acquisitions that trigger merger notification to the CCI if no statutory exemption is available.

i. Sham or vexatious litigation

Sham or vexatious litigation as a tool to exclude competition is one of the important issues in IP and antitrust, as it involves the strategic use of IP infringement actions before courts with the ultimate objective of excluding a rival from the market. Antitrust regulators across jurisdictions have examined vexatious litigation as a strategy involving denial of market to a competitor. In the European Union and the United States, courts have laid down two broad principles that need to be satisfied when resolving an antitrust claim based on vexatious litigation: first, the lawsuit must be objectively baseless to the extent that no reasonable litigant could expect success on the merits; and second, the IP holder’s utilisation of the court system must be conceived in the framework of a plan to eliminate competition.⁴⁸

In nearly 12 years of antitrust enforcement, the CCI has received three complaints regarding sham litigation as a potential abuse of dominance. The first case involved a complaint against JCB India Ltd (JCB), where the complainant – Bull Machines Private Limited – alleged that JCB, as a patent holder, procured an ex parte infringement injunction from a high court to strategically delay the launch of its competing product. The withdrawal of the patent infringement suit by JCB soon after the product launch had been successfully delayed formed the basis of the CCI’s investigation into whether JCB had engaged in sham or vexatious litigation.⁴⁹

In Biocon Limited & Ors v. F Hoffmann La Roche AG,⁵⁰ however, the CCI appeared reluctant to view as abusive conduct, the use of court proceedings to enforce legitimate IP. In its order directing investigation against Roche, the CCI noted that recourse to legal proceedings is a right of every party and, as a general principle, cannot be viewed as being sham litigation except under exceptional circumstances. Further, in InPhase Power Technologies Private Limited v. ABB India Limited,⁵¹ the CCI did not analyse allegations of vexatious litigation against ABB. The CCI held that there was no reason to investigate ‘abuse’ of dominance if ABB lacked dominance in the relevant market.

More recently, the CCI in Cryogas Equipment Private Limited v. Inox India Private Limited⁵² (Inox Case), held that in matters relating to sham litigation resulting in alleged abuse of dominance, the competition authority is to look into the matter objectively: (1) as to whether the litigation resorted to by the dominant entity is ex facie baseless, i.e., no reasonable litigant could realistically expect success on the merits; and (2) it is filed with the intent to prevent competition. The CCI in the Inox Case preliminarily held that the litigation by Inox India Private Limited (Inox) against Cryogas Equipment Private Limited (CEPL) was not lacking bona fide. However, it opined that any final and conclusive determination in this regard, can only be made by the competent court before which the case had been filed by Inox.

The jurisprudence on the point of vexatious litigation under the Competition Act has so far developed based on the preliminary orders of the CCI.⁵³ Because the CCI’s preliminary orders are not determinative of their final findings, the CCI’s determinative approach to vexatious litigation allegations remains uncertain.

Non-inclusion of the IP exception shouldn’t be seen as an express permission to disregard protection of IP as a legitimate justification for certain conduct by dominant companies. This may discourage innovation and scientific progress. At the same time, companies will have to be more cautious in using IP protection in defending the alleged abusive conduct.

The CCI has adopted a largely balanced and progressive approach in ensuring that the enforcement of competition law is not at odds with the preservation of IP. In doing so, it has relied on decisional practice in other jurisdictions, while developing its own (albeit limited) jurisprudence on antitrust issues emanating from the exercise of IPRs, be it sham litigation, licensing restrictions or FRAND disputes. While much of the CCI’s existing jurisprudence has been developed based on its preliminary orders, a more determinative approach will be determined in appellate review, with the Indian Supreme Court making the final decision. As with many other issues, the enforcement of antitrust law on questions involving IP is likely to continue to evolve in the coming years.

Footnotes:
¹ Toshit Shandilya is a partner, Chandni Anand is a senior associate and Yavipriya Gupta is an associate at AZB & Partners.
² Contained in Section 3 of the (Indian) Competition Act, 2002 (the Competition Act).
³ Contained in Section 4 of the Competition Act.
⁴ Section 3(1) of the Competition Act prohibits enterprises from entering into agreements that cause or are likely to cause an appreciable adverse effect on competition (AAEC) within India. Section 3(5) of the Competition Act provides that the prohibition on enterprises from entering into agreements that cause an AAEC does not extend to the right of any person to restrain any infringement of, or to impose reasonable conditions as may be necessary for protecting, any of his or her rights that have been or may be conferred upon him or her under (1) the Copyright Act 1957; (2) the Patents Act 1970 (Patents Act); (3) the Trade and Merchandise Marks Act 1958 or the Trade Marks Act 1999; (4) the Geographical Indications of Goods (Registration and Protection) Act 1999; (5) the Designs Act 2002; and (6) the Semiconductor Integrated Circuits Layout-Design Act 2000.
⁵ Section 26(1) of the Competition Act authorises the CCI to issue orders directing the Director General to investigate a matter, where the CCI is of the prima facie view, upon receipt of information or reference made by the government or a statutory authority, that the provisions of the Competition Act may have been violated.
⁶ Section 5 of the Competition Act includes an acquisition of asset where the acquirer enterprise or group and the target enterprise exceed the prescribed jurisdictional thresholds.
⁷ Where the restrictions are both ‘reasonable’ and ‘necessary’ to protect registered IP.
⁸ In FICCI – Multiplex Association of India Federation House v. United Producers/ Distributors Forum (case No. 1 of 2009, 25 May 2011) (FICCI Multiplex Case), the CCI noted that intellectual property (IP) laws do not have any absolute overriding effect on competition law, and that the non obstante clause in Section 3(5) of the Competition Act is not absolute and exempts the IP holder from the rigours of competition law only to protect them IP from infringement.
⁹ M/s KC Marketing v. Oppo Mobiles MU Private Limited (case No. 34 of 2018, 8 November 2018) (OPPO Mobiles case).
¹⁰ Tamil Nadu Consumer Products Distributors Association v. Vivo Communication Technology Company (Vivo Communications case), case No. 15 of 2018, 4 October 2018.
¹¹ Monsanto Holdings Private Limited & Ors v. CCI & Ors (Writ Petition (Civil) No. 1776 of 2016 & 3556 of 2017, 20 May 2020). In this decision it was argued that as patents holders are permitted to impose restrictions under the Patents Act, to then examine whether the conditions further to the exercise of IP is ‘necessary’ and ‘reasonable’ would raise a conflict of jurisdiction. The Delhi High Court disagreed and held that the objectives of the Patents Act and the Competition Act are distinct. It was further held that: (1) the objectives of the Patents Act, 1970 (Patents Act) and the Competition Act are distinct, and the latter seeks to promote a free market because of which the functions and remedies implementable by the CCI are different from a specialised regulator under the Patents Act; and (2) therefore, a review of anticompetitive conduct that may emanate from the exercise of IP is within the CCI’s jurisdiction.
¹² Vifor International Ltd v. CCI (Writ Petition (Civil) No. 11263/2022, 28 July 2022) and Swapan Dey v. Vifor International (AG) (case No. 5 of 2022, 25 October 2022).
¹³ Air Works India (Engineering) Private Limited v. GMR & Ors (case No. 30 of 2019, 3 October 2019) (Air Works-GMR case).
¹⁴ In Re: Velankani Electronics Private Limited and Intel Corporation (case No. 16 of 2018, 9 November 2018) (Intel case).
¹⁵ cci.gov.in/economics-research/market-studies/details/19/0.
¹⁶ Automobiles Dealers Association, Hathras, UP v. Global Automobiles & Ors and Pooja Expo India Private Limited (case No. 33 of 2011, 3 July 2012).
¹⁷ Pursuant to Explanation (e) to Section 3(4) of the Competition Act, an IP licensor may impose a price ceiling (i.e., a maximum resale price) but not a price floor (i.e., a minimum resale price).
¹⁸ Pursuant to Explanation (c) to Section 3(4) of the Competition Act, ‘exclusive distribution agreements’ include ‘any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods are identified under the Competition Act as a vertical restraint and is prohibited if it results in an AAEC’.
¹⁹ Pursuant to Explanation (d) to Section 3(4) of the Competition Act, ‘refusal to deal’ includes ‘any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought’.
²⁰ Pursuant to Explanation (b) to Section 3(4) of the Competition Act, ‘exclusive supply agreements’ include ‘any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person’.
²¹ Pursuant to Explanation (a) to Section 3(4) of the Competition Act, a ‘tie-in’ arrangement includes ‘any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods’.
²² Shri Shamsher Kataria v. Honda Siel Cars India Ltd (case No. 03 of 2011, 25 August 2014) (Auto Parts case).
²³ FICCI Multiplex case. See footnote 7.
²⁴ Case No. 97 of 2016, 21 June 2017.
²⁵ Section 4(2)(c) of the Competition Act.
²⁶ Section 4(2)(b)(i), ibid.
²⁷ As the CCI has held that for a vertical restriction to qualify as an anticompetitive vertical arrangement, market power is necessary, vertical restrictions may equally be examined as unilateral conduct (where the entity imposing the restriction is a dominant entity).
²⁸ Air Works-GMR case (see footnote 11).
²⁹ The doctrine of essential facility requires the following conditions: (1) the dominant entity to control access to an essential facility; (2) the facility cannot reasonably be duplicated by the competitor; (3) the dominant entity denies access to the competitor; (4) there should be no alternative means of entering the relevant market at a reasonable cost without having access to the essential facility; and (5) there must be spare capacity on the facility in question.
³⁰ Provision of line maintenance services necessarily requires physical presence of the service provider and its infrastructural facility at the airport premises.
³¹ Case No. 8 of 2016.
³² Mr Umar Javeed v. Google LLC (case No. 39 of 2018, 20 October 2022).
³³ Google LLC v. CCI, Competition Appeal (AT) No. 01 of 2023.
³⁴ Section 4(2)(a)(ii) of the Competition Act.
³⁵ Intel case (see footnote 14).
³⁶ Order dated 3 December 2021 in case No. 16 of 2018.
³⁷ Reference case No. 2 of 2015 and case No. 107 of 2015, 10 February 2016, and case Nos. 37, 38 and 39 of 2016, 9 June 2016.
³⁸ TA (AT) (Competition) No. 1 of 2017.
³⁹ The CCI, when investigating excessive pricing allegations (see Auto Parts case, footnote 20), has relied on the approach in United Brands Company and United Brands Continental BV v. Commission [1978] ECR 207, where the European Court of Justice held that ‘charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied’ could constitute an abuse of dominant position.
⁴⁰ Sony Electronics v. Soundview Technologies Inc, 157 F.Supp. 2d 180 (D.Conn. 2001).
⁴¹ A standard, by definition, eliminates alternative technologies. When a patented technology is incorporated in a standard, adoption of the standard eliminates alternatives to patented technology. The value of a patent becomes significantly enhanced after the patent is incorporated in a standard.
⁴² Broadcom Corp v. Qualcomm Inc, 501 F.3d 297, 314 (3d Cir. 2007).
⁴³ Patent hold-up refers to a situation where participants chose not to make a complete disclosure of their patents during the standard-selection process, and once the standards were widely adopted, demanded unreasonable royalties. Also see In re Rambus Inc, Dkt. No. 9302 (FTC 2002), In re Union Oil Co of Cal, Dkt. No. 9305 (FTC 2003), In the matter of Dell Computer Corp 121 FTC 616 (1996).
⁴⁴ Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (case No. 50 of 2013, 12 November 2013).
⁴⁵ Telefonaktiebolaget LM Ericsson v. CCI (Writ Petition (Civil) No. 464 of 2014, 30 March 2016).
⁴⁶ Telefonaktiebolaget LM Ericsson v. CCI, LPA No. 246 of 2016 and Monsanto Holdings Private Limited & Ors v. CCI, LPA No. 150 of 2020.
⁴⁷ Combination Registration No. C-2016/11/456, AT&T and Time Warner Inc.
⁴⁸ See ITT Promedia NV v. Commission of the European Communities (Case T-111/96), and Professional Real Estate Investors Inc v. Columbia Pictures Industries, 508 US, 49, 60–61 (1993).
⁴⁹ M/s Bull Machines Pvt Ltd v. M/s JCB India Ltd & Ors (case No. 105 of 2013, 11 March 2014); Further to allegations of procedural violations by the Director General’s office while conducting a dawn raid against JCB, the Director General’s investigation has been stayed.
⁵⁰ Case No. 68 of 2016, 21 April 2017: while the CCI disagreed with the allegations on unfair pricing, it preliminary found that Roche had abused its dominance for unfairly attempting to influence Indian regulatory authorities to restrain Biocon’s and Mylan’s entry into the market for the relevant biological drugs (including its biosimilars) in violation of Section 4(2)(c) of the Competition Act.
⁵¹ Case No. 12 of 2016, 31 January 2020.
⁵² Case No. 08 of 2021, 8 March 2022.
⁵³ The CCI’s prima facie orders are essentially directions to the Director General to initiate an investigation into the complaint.