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Abstract

The competing policy questions of individual rights and the public interest seem reinvigorated with the patent wars before the Delhi High Court and the Competition Commission of India. The Indian jurisprudence concerning FRAND litigation is at its nascent stage, which is evident from the contrary opinions rendered by the Judiciary and the Competition Commission. The unique nature of SEP contracts has not been completely appreciated by the Indian courts, considering the exceptions under which injunctive relief that can be granted and the basis of determining the royalty rates. These contentious issues can only be resolved through an equitable policy approach of balancing the rights of the patent holder and the potential licensee. The distortion of the equilibrium will either lead to anti-competitive acts such as hold ups, which in effect impacts innovation and public interest. The primary jurisprudential correction in FRAND (Fair, Reasonable and Non-discriminatory) litigation is to prevent the abuse of process through injunctive reliefs and resorting to appropriate tests in determining the royalty rates. This research paper analyzes the manner in which Indian courts have dealt with these issues and the reform necessitated to render legal stability and consistency in the burgeoning Indian market, especially the telecommunications sector. The courts around the world have evolved equitable grounds as tests for determining the grant of injunctive relief and the methodology of determining the royalty rates. The Indian legal system must also accordingly attune its jurisprudence to the global wavelength and accord the necessary public interest in disputes concerning FRAND licensing, its rightful consideration.

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