STANDARD ESSENTIAL PATENTS (SEPS) AND THE ANTITRUST LAWS: COMPLEMENTARY OR CONTRADICTORY? A CRITICAL ANALYSIS WITH SPECIAL REFERENCE TO THE PATENT REGIME IN INDIA

In the Intellectual Property regime, particularly in the area of patent, Standard Essential Patents (SEPs) are the evolving jurisprudence. Some of the developed countries are in favour of SEPs, while some others are not. In India, the discussion is going on either to introduce the practices of SEPs or to amend the existing patents laws, i.e, Patent Act, 1970, to pave a way for the adoption of the SEPs. In this research paper, the author intends to analyse the quality practices that have been adopted by the Indian Intellectual Property Laws (IP Laws). Though the IP Laws in India are not directly connected with the with word ‘quality', the words used in the IP Laws such as Copyright Act, 1957, Patent Act, 1970 are more concerning with the quality practices when comparing with the U.K and U.S. Laws. In this scenario, the author aspires to discuss as to whether the SEPs are the need of the hour? Or mere amendment in the existing Patent Act, 1970 is sufficient to have the standards in the patents that are essential to the society. The authors, inter alia, are intended to analyse as to whether in case, if the SEPs are allowed in India, would it hit the provisions of the anti-trust laws i.e, Competition Act, 2002? And lastly based on the analysis the authors would like to suggest some remedial measures balancing the rights of the SEP holder, Standard Setting Organisations (SSOs) and the public at large. Aim and Scope: This research aims to know the concept of Standard Essential Patents and the quality practices adopted in the Indian Patent Regime and also to know the as to whether the concept of SEPs is against the spirit of the antitrust laws. The scope of this paper is mainly focusing on the SEP concept in Indian scenario and tries to suggest measures to be adopted balancing the rights of the SEP holder, SSOs and the Public at large. Method: This research paper is mainly based on the non-empirical method and secondary sources are relied upon such as, books, articles, journals, magazines, legislations are used for making the research article. Conclusion: Encouraging the SEPs and SSOs, will lead to the appreciable adverse effect on the market economy. There are a lot of chances for “abuse of dominant position” either by the SEPs holder or by the SSOs. In the present scenario, particularly in the absence of any specific provisions in the Patent Act, 1970 and because of Section 3 and 4 of the Competition Act, 2002, the concept of SEPs is not permissible in India. SSOs and the SEPs seem like an unbridled horse. It is the need of the hour to control the horse by bringing suitable amendments in the Patent Act, 1970. Accordingly, recommendations are given in this paper.