The IUP Journal of Law Review
Determining Anti-Competitiveness While Granting Compulsory License for a Patent: Controller vs. Competition Commission of India

Article Details
Pub. Date : July, 2020
Product Name : The IUP Journal of Law Review
Product Type : Article
Product Code : IJLR072020
Author Name : Kanika Dhingra and Siddharth Balani
Availability : YES
Subject/Domain : Arts & Humanities
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No. of Pages : 13

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Abstract

The patent law in India provides the means to acquire monopolistic rights over inventions by giving exclusive rights to the innovators. However, the patent law in itself has a mechanism to monitor and restrict this abusive behavior by granting compulsory licenses to others where a patent holder is engaged in anti-competitive practices. On the other hand, Competition Law provides for checks on the monopolist's behavior and prevents them from abusing their dominant position. Since there is an overlapping area between both authorities, it becomes important to assess how both the authorities exercise their powers in a common dispute. The issue of "who decides anti-competitiveness" has been addressed to a limited extent by the Delhi High Court in the Ericsson decision, while suggesting that both the authorities are competent to decide upon the anti-competitive behavior of a patentee. This poses a few pertinent questions that need to be addressed. The authors attempt to critically analyze the implication of this decision, while also addressing the relevance of "reference to Competition Commission of India" as a relevant but ignored consideration in the decision.


Introduction

The patent regime in India ensures protection for certain inventions and as an implicit rule, it also grants certain exclusive rights and privileges to the patentee in respect of his invention.1 This protection vests monopoly rights in the creator to use, manufacture, and sell his invention. It is for this reason that a major concern has developed worldwide with regard to the possibility of abuse of these rights. In an attempt to counter the same, the policy of granting 'Compulsory Licenses' has been incorporated in the same regime which grants such exclusive rights.

Compulsory licenses can commonly be defined as the authorization by the government permitting a third-party to make, use, or sell a patented invention


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