The Judiciary’s Shadow Over Standard Essential Patents


08:55 AM

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The Judiciary’s Shadow Over Standard Essential Patents Blog Image

Why in News?

  • The issue of Standard Essential Patents (SEPs) and their impact on India's telecom manufacturing sector has emerged as a pressing policy concern.
  • However, the way SEPs are wielded by technology companies poses challenges, leading to potential crises in India's domestic manufacturing industry.
  • Therefore, it is important to examine the complexities of this issue, analysing the role of SEPs, the challenges posed by their regulation, and the need for regulatory intervention.

Standard Essential Patents (SEPs)

  • SEPs are patents that are essential to the implementation of a technical standard.
  • SEPs are important for industries such as telecommunications, where standards like 3G, 4G, and 5G are crucial for enabling communication between different devices and networks.
  • These patents are typically owned by companies or individuals and are crucial for ensuring interoperability and compatibility between products and technologies that adhere to a particular standard.
  • SEPs, which cover technologies adopted as industry standards, play a crucial role in ensuring interoperability and competitiveness in the cellular phone market.
  • However, disputes over SEP licensing and infringement are not uncommon, leading to legal battles and negotiations between companies and patent holders to determine fair licensing terms.

Importance of SEPs and Regulatory Challenges

  • SEPs, such as CDMA, GSM, and LTE, form the backbone of technological standards in the telecom sector, ensuring compatibility among different cellular phone brands.
  • However, the process of setting standards, largely controlled by private Standard Setting Organisations (SSOs), limits India's influence.
  • Consequently, companies owning SEPs can demand exorbitant royalties, leading to the "patent holdup" problem.
  • While SSOs aim for fair, reasonable, and non-discriminatory (FRAND) licensing, opacity and anti-competitive practices persist, as evidenced by significant fines imposed on companies like Qualcomm by various countries.

Judicial Response to Issues Surrounding SEPs

  • Lethargy in Competition Law Enforcement
    • The Competition Commission of India (CCI) initiated an investigation in 2013 following a complaint by Micromax against Ericsson, alleging abusive practices regarding SEP licensing.
    • However, Ericsson challenged the CCI's authority to investigate, leading to prolonged legal battles.
    • Despite a favourable ruling for the CCI in 2016, Ericsson's appeals and subsequent delays resulted in the case lingering for seven years until a final judgement in 2023.
    • This extended litigation period has left India as the only major economy yet to scrutinise potentially anti-competitive SEP licensing practices.
  • Judicial Activism in Patent Infringement Cases
    • While competition law issues remain unresolved, the Delhi High Court has actively engaged in hearing lawsuits filed by SEP owners against cellular phone manufacturers accused of infringing on their patents.
    • These lawsuits typically involve complex trials to determine patent validity, infringement, and damages.
    • However, instead of staying such proceedings until the resolution of competition law matters, the court has issued interim remedies favouring SEP owners.
    • These remedies often require manufacturers, many of whom are Indian companies, to deposit significant sums of money with the court to continue production during trial periods.
  • Unprecedented "Deposit" Orders
    • The practice of issuing "deposit" orders, where manufacturers are compelled to deposit substantial funds with the court before trial, is unprecedented in commercial law.
    • These orders, lasting for the duration of lengthy trials, place a severe financial burden on defendants, depriving them of essential working capital.
    • Such orders lack legal basis and fairness, yet the Delhi High Court justifies them under its "inherent powers to do justice."
    • This judicial activism, though aimed at expediting legal proceedings, raises questions about procedural fairness and equitable treatment of litigants.

Impact of Judicial Interventions and Prolonged Legal Battles on India's Manufacturing Dreams

  • Erosion of Investor Confidence and Market Stability
    • The uncertainties created by prolonged litigation and judicial interventions erode investor confidence in India's manufacturing sector.
    • Foreign investors may view the unpredictable legal landscape as a deterrent to establishing or expanding operations in the country.
    • The lack of clarity on SEP licensing practices and the potential for adverse court rulings contribute to market instability, hindering long-term investment planning and strategic decision-making by both domestic and international firms.
  • Inhibiting Growth and Innovation
    • The focus on SEP-related disputes detracts from efforts to foster innovation and technological advancement in the telecom manufacturing sector.
    • Instead of channelling resources towards research and development (R&D) or adopting new technologies, companies may find themselves embroiled in legal battles, diverting attention and funds away from productive endeavours.
    • This diversion of resources stifles innovation, hampers product development, and undermines India's ability to compete on a global scale.
  • Job Creation and Economic Impact
    • The manufacturing sector plays a pivotal role in job creation and economic growth, particularly in emerging economies like India.
    • However, the uncertainties surrounding SEP-related litigation pose a threat to job stability and employment prospects, especially for workers in the telecom manufacturing industry.
    • Delays in legal proceedings, coupled with the financial burdens imposed on manufacturers, may force companies to scale back operations, lay off employees, or reconsider future investments in domestic manufacturing facilities.
    • This, in turn, undermines the government's efforts to address unemployment and promote inclusive economic growth.
  • Contradictions in Policy Objectives
    • The disconnect between judicial interventions favouring SEP owners and government initiatives to incentivise domestic manufacturing creates contradictions in policy objectives.
    • While the government seeks to attract investment and promote indigenous production through schemes like "production linked incentives," the adverse effects of SEP-related disputes undermine these efforts.
    • The discrepancy between supporting manufacturers investing in India and overlooking the financial burdens imposed by SEP owners raises questions about the coherence and effectiveness of policy measures aimed at fostering industrial growth.
  • Long-term Implications for India's Industrial Landscape
    • The unresolved tensions surrounding SEP licensing practices and the judiciary's handling of related disputes have long-term implications for India's industrial landscape.
    • Failure to address these issues may deter both domestic and foreign investors, jeopardise job creation prospects, and impede the country's transition towards a knowledge-based economy.
    • Without regulatory intervention to streamline legal processes, ensure procedural fairness, and uphold the principles of competition law, India risks falling behind its global counterparts in the race for manufacturing excellence.

Way Forward: Lessons from Europe

  • The European Parliament has taken proactive measures to regulate SEPs, setting a precedent for international intervention in this domain.
  • India, with its limited influence over standard-setting processes and obligations to enforce patents of foreign technology companies, has a compelling case for similar regulatory intervention.
  • Strengthening regulatory frameworks to ensure transparency, fairness, and non-discrimination in SEP licensing is imperative to safeguard India's economic interests and promote domestic manufacturing.


  • It is incumbent upon the Indian government to address the regulatory gaps and uncertainties surrounding SEPs to safeguard the interests of domestic manufacturers and promote industrial growth.
  • Regulatory measures should aim to balance the interests of technology companies with the broader imperatives of economic development, innovation, and consumer welfare.

By intervening decisively in this arena, India can assert its sovereignty, promote a level playing field, and foster a conducive environment for investment and innovation. 

Q) Why is determining fair and reasonable licensing terms for Standard Essential Patents (SEPs) such a complex issue?

Determining fair and reasonable licensing terms for SEPs is complex due to the need to balance the interests of patent holders seeking adequate compensation for their innovations with the necessity of ensuring widespread access to essential technologies. Additionally, the interpretation of what constitutes "fair" and "reasonable" can vary among stakeholders, leading to disputes and litigation.

Q) How do regulators address the challenge of patent hold-up in the context of SEPs?

Regulators address the challenge of patent hold-up by enforcing antitrust laws to prevent abuse of market power by SEP holders. This may involve requiring SEP holders to offer licences on fair, reasonable, and non-discriminatory (FRAND) terms, promoting transparency in licensing practices, and facilitating dispute resolution mechanisms. Additionally, regulators may encourage collaboration between industry stakeholders to develop guidelines and best practices for SEP licensing

Source:The Hindu