Standard Essential Patents cover the fundamental technologies used with industry standards, whether telecommunication, data transfer, or any other such standards. Thus, owners of SEPs can license only on FRAND terms, leaving market access reasonably open. Yet, the rights of SEP holders will bring very complex compliance issues under the competition law because countries such as India and the European Union have adopted different approaches for enforcing SEPs and the respective FRAND obligations. The EU has a well-established framework for enforcing SEP through the support of competition law and precedents from court judgments such as the Huawei v. ZTE case, which encourages transparency in licensing arrangements. Through this framework, SEP holders cannot misuse their dominant positions by either collecting extreme royalties or pressuring by injunction without following the terms of FRAND. India, however, has an evolving SEP enforcement framework. Recent judicial decisions around the Delhi High Court indeed reflect a direction towards implementing FRAND commitments, but simultaneously, challenges continue to exist, such as those relating to the over-declaration of non-essential patents and the pre-litigation mechanisms being absent for determining essentiality. This paper analyses the enforcement of FRAND obligations and SEPs in India and the EU, focusing specifically on their roles within innovation, competition, and access to critical technologies. The EU’s mature legal system contrasts with India’s developing framework, which is influenced by competition law principles. The paper argues that India must refine its SEP enforcement mechanisms to ensure consistency and clarity in its judicial and regulatory practices. To conclude, the paper advocates for harmonising SEP enforcement across jurisdictions. A pre-litigation essentiality assessment in India, to start with, and clearer guidelines on SEP licensing based on observed practices in the EU are some of the key proposals in the paper. All these would remove uncertainties from the legalities, ensure fair access to such technology, and drive global innovation.
A. et al. (Thu,) studied this question.