A RETHINK AND REBOOT OF FRAND (FAIR, REASONABLE, AND NON-DISCRIMINATORY) JURISPRUDENCE IN INDIA

A RETHINK AND REBOOT OF FRAND (FAIR, REASONABLE, AND NON-DISCRIMINATORY) JURISPRUDENCE IN INDIA

?A Rethink and Reboot of Frand (Fair, Reasonable, And Non-Discriminatory) Jurisprudence In India is necessary to address the evolving landscape of patent licensing, competition law, and innovation.

India currently lacks a well-defined framework for FRAND licensing, leading to ambiguity in resolving disputes between patent holders (especially SEP—Standard Essential Patent holders) and implementers. There is a lack of balance and level playing field between the Standard Essential Patent holders and implementers in India.

In the guise of confidentiality, there is a complete abuse of dominant position which a Standard Essential Patent holders enjoy and ghost agreements are created to claim the FRAND compliance. This is further aggravated by one sided jurisprudence which ignore certain vital aspects and to some extent the Patent Rules formulated by the High Court.

It is necessary (i) to Establish statutory guidelines under the Patents Act or a dedicated FRAND policy which is statutory and India specific; and (ii) Provide standardized methods to determine what constitutes "fair" and "reasonable". This is necessary to create a balance and level playing field.

Further, while adopting Standards, the Country must be cautious that it is not creating a dollar drain and risking its stability. The increase of Chinese Standard Essential Patent holders is a legitimate issue, and the government should be cautious of the same.

A Balancing of Patent Rights and Public Interest is required as many disputes involve high royalty demands from SEP holders (like in the telecom sector) versus the affordability concerns of implementers.

It is necessary that we (i) implement statutory royalty calculation methods that consider the Indian market’s unique needs; (ii) cap royalties as there are multifarious demands and multiple SEP holders; (iii) encourage alternative dispute resolution (ADR) to resolve FRAND disputes efficiently; and (iv) Courts should prioritize negotiations over immediate injunctions and/or pro tem orders to avoid market disruption.

?The current system often favours multinational patent holders over domestic companies. These multinational aid other multinationals by having a variable rate for domestic and non-domestic companies on the pretext of domestic being non-similarly places to multinationals.? ?It is necessary that (i) we develop India-specific FRAND models to protect startups, small enterprises and domestic companies; and (ii) introduce compulsory licensing provisions on cost effective basis for SEPs in extreme cases.

?India must move towards a balanced, transparent, and predictable FRAND regime that fosters innovation and protects domestic businesses. A policy rethink, a statutory framework and jurisprudential change is essential to ensure that FRAND principles do not become tools for destroying the domestic market but instead serve their intended purpose—promoting fair access to essential technologies.