Licensing of SEPs in an Implementer-Oriented Economy: Challenges from an Indian Perspective

Abstract

AbstractThe ripple effect created by standardization has transcended beyond the developing world and engulfed emerging economies, with interoperability in technological standards such as Wi-Fi, Bluetooth, LTE, Blue-Ray, and the likes, bringing about a major transformation in the Information and Communications Technology (ICT) sector. While a major chunk of the discussion involving standards-setting and licensing of standard essential patents (SEPs) has centred around the United States (U.S.) and European Union (EU), the rapid emergence of Chinese patent holders and a steady increase in SEP-related jurisprudence in India has caused a significant change in the innovation landscape in the past five years. As opposed to innovator-dominated economies like the U.S. and EU, this chapter focuses on the state of standardization in an implementer-oriented economy, such as India. Lack of an independent SSO framework, coupled with contrasting approaches adopted by Indian courts and the CCI in FRAND disputes, has led to an uncertain future in the bigger scheme of things involving innovation and standardization in India. In referring to the SEP guidelines formulated by the Guangdong High People’s Court in China and the Japan Patent Office in Japan, the Chapter assesses the feasibility of an India-specific set of recommendations for shaping the standardization climate in the country. On a more general level, it offers implementer-oriented economies some much needed food for thought, in their quest for establishing a framework for SEP licensing; one that is likely to be different to that adopted by the innovator-dominated economies.