Published: 1/2/14
In his op-ed Mr. Dhal, former Chairman of the Competition Commission of India (CCI), summarizes the complaint Micromax brought against Ericsson for allegedly violating its FRAND commitments by charging exorbitant and discriminatory royalty rates for SEPs (see summary of complaint on web page addressing materials by antitrust agencies). Mr. Dhall also discusses how India’s Competition Act can deal with the antitrust implications raised by a breach of FRAND commitments in the same way as some courts and regulators in the US and in Europe already have done. Specifically, he notes that the use of injunctive relief by SEP holders when their royalty demands are not met has been curtailed by courts that have found a FRAND commitment implies an agreement that monetary compensation is sufficient. Likewise, injunctions should be curtailed under the Competition Act of India, which he says is equipped to deal with other scenarios where the SEP holder reneges on FRAND commitments. These scenarios could include “where a SEP holder refuses to deal with certain standard implementers such as manufacturers of the patented components or is using the SEP as a means to force the licensing of another patent by tying the two together.” He concludes that “Such restrictive behaviour by a SEP holder, if not reined in, can cause serious adverse effects for consumers and for innovation generally.”