Standard Essential Patents and Their Competition Law Regulation - Discovering the Law, in the Realm of Inventions

Abstract

Patent protection is the fruit of invention. Its commercial monetization drives the research and development machinery of various industrial establishments. Notwithstanding the monetary gain, an ‘invention’, serves a great social purpose by adding to the existing pool of technical knowledge. In a highly technical industry, such as the telecommunications industry, the commercial viability of various technical products depends on their inter-operability across various platforms. In order to enable such inter-operability, common standards are developed through the process of ‘Standardisation’. Such technological standards are termed as ‘Standard Essential Patent’ (SEP) when they are given patent protection, for which there are no non-infringing alternatives. The terms of licensing of such patents are sought on principles which are Fair, Reasonable and Non-Discriminatory (FRAND Principles).Once a patent is declared as Standard Essential Patent, it faces no competition from other patents until that patent becomes obsolete due to new inventions. Therefore, the only alternative is another Standard Essential Patent. Consequently, the Patent holder is a monopolist in its domain, holding absolute power. As power corrupts and absolute power corrupts absolutely, this absolute power of the Patentee needs to be regulated by effective regulatory machinery.The legal discourse at present is centered on, as to which regulatory body would be the appropriate forum to regulate the conduct of such patentees. The jurisprudence regarding the appropriate forum is yet to be discovered and developed. The scope of this paper is circumscribed around the regulatory powers of the competition commission qua the Standard Essential Patent holders and how it can foster competition and curtail any abuse of dominance by such class of patentees.