FRAND (fair, reasonable and non-discriminatory) litigation, unlike every other traditional litigation, requires some clarity on the background. It is important to understand what standard essential patents (SEPs) are, how they differ from regular patents or even compulsory licences and why they are so important. And most importantly, it is vital to understand the standing of relevant standard-setting organisations (SSOs), their functioning, policies, approach and their limitations.
With a brief review of such concepts, I explain why the determination of royalty rates is a tricky concept in FRAND and that they should be left to technical bodies like the Intellectual Property Appellate Board (IPAB). Then again, there is no written word of law which prohibits the courts from adjudicating upon royalty rates. It is advisable, however, if the same is referred to the technical bodies instead, which becomes more imperative from the Hon’ble Delhi High Court’s act of granting temporary injunction in SEP litigation unlike any other leading court, thus influencing the ongoing negotiation process between the parties. Furthermore the Competition Commission of India is the only anti-trust body which has assumed jurisdiction in a FRAND matter.
I have provided a number of recommendations and the approach that should have been followed by the Hon’ble High Court and the Competition Commission of India. With issues like non-disclosure agreements, double dipping, issuance of interim injunctions and rates, it might not be possible to ascertain the direction in which Indian jurisprudence is moving, but one thing is sure: FRAND litigation is under the spotlight!
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