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All IPR deals with monopoly of a particular trade.

It cannot exist prior to being claimed. Should not be in the public domain.
Should not hinge on anyone elses rights.

IP exclusive patents and competition


Relationship between the competitors -- Horizontal

Between firm and customers/suppliers vertical

Regulates Conduct of dominant firms

Look at existence of relevant markets --- product (cola market) and


geographic (subjective view)

Anti-competitive agreements (s.3 of competition act)

S-4: abuse of dominance

Take into account

What is the relevant player


Whether the player is a dominant player or not
Dominance is being abused (no free flow of products and services)

S 5 & 6: merger control

IPR creates monopoly while competition law goes against it

Newness of competition law

s. 3(5): exercise of IP holders right in a reasonable manner will not be


considered anti-competitive

What is the standard of determining reasonableness?

Question till date not effectively answered

Stance Reasonability cannot have an actual standard. Determined on a


fact to fact basis.

Standard essential patents (look up)

Ericcsons case ( vs MIcromax, INtex)

Compulsory license is a tool against monopoly


Anyone who holds and SEP is obligated to give out a grant license
Ericcsson vs Intex

E develops chipsets of mobile phones. Others cannot bring out their


mobiles without their chipsets. Holds around SEP. E offering unacceptable
terms for licensing. Royalty payment based on individual price of the
phone sold. Variable royalty. M and I cried foul and started seling their
phones without entering into a licensing

E asked for injunction in the Delhi HC and asked the HC to fix the royalty

HC passed injunction. HC determined an actual final rate. MIcromax and


Intex paralleley filed a complaint in the competition commission because
of abuse of monopoly

CGI look into matter and passed two separate orders.

Abuse of monopoly
Licensing terms not reasonable

CCI Direction to investigate into the licensing process and their


relationship with other players.

E moved division bench of HC against CCI orders. Interplay of IP and


competition law touched upon.

CCI does not have jurisdiction to look into IP licensing matter.


Jurisprudence of S.3(5) given. Exception of reasonable use.

Judgment by CCI not on patent licensing but on monopolistic exercise of


patent licensing

Competition act looks into exercise of IP rights.

Division bench judgment in favor of M and I

Delhi HC looked into IPR. Court is not looking into pure IP aspects but the
exercise of IP rights

Exercise of rights adversely affected the competition.

Argument that judgment not enough

Until it is proved that an anti-competitive arrangement is existing

Look at practice in other jurisdictions


Copyright misuse (Look up): defense in the US for copyright infringement

Used in Atari games corporation vs Nintendo

Intention is not IP protection but more focused on the commercial aspect

Defense not taken in positive light in India. This defense completely


subverts the rights of an IP owner.

Doctrine touched upon in the E division bench judgment. Wider import


afforded in other jurisdictions.

IP Licensing matters, are the IP authorities qualified to go into this?

Need for wider import in competition policy?

CCI has complete jurisdiction on anything affecting competition (Ericson


case)