FRAND in India: JIPLP's first Open Access article

"FRAND in India: The Delhi High Court's emerging jurisprudence on royalties for standard-essential patents" by J. Gregory Sidak (Criterion Economics), has just been published online by the Journal of Intellectual Property Law & Practice (2015) doi: 10.1093/jiplp/jpv096.  This is a significant "first" for JIPLP, being the first time the journal has published an Open Access article.

The article is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/) and yuou can read the article in full, without payment, here.  The licence permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.

The abstract of this article reads as follows:

Indian jurisprudence on fair, reasonable, and non-discriminatory (FRAND) licensing practices for standard-essential patents (SEPs) is at a relatively nascent stage. Unlike US and EU courts, which have dealt with cases concerning calculating a FRAND royalty for a considerable time, Indian courts and the Indian antitrust authority—the Competition Commission of India (CCI)—have only just begun to decide such cases.

In its initial orders in the first two antitrust complaints concerning SEPs, the CCI seemed to favour using the smallest saleable patent-practising component (SSPPC) as the royalty base to determine a FRAND royalty. However, in the short time since the CCI's orders, the Delhi High Court has rendered contrary decisions in two SEP infringement suits. The Delhi High Court's decisions use the value of the downstream product as a royalty base and rely on comparable licences to determine a FRAND royalty. The Delhi High Court's decisions are not only consistent with sound economic principles, but also indicate that the court is responding to the judicial and industry trends in the rest of the world.

Because the CCI is still investigating the antitrust complaints with respect to the same SEPs, the CCI could benefit from considering the legal and economic arguments in the Delhi High Court's decisions. It would be counterproductive for the emerging FRAND jurisprudence in India if the judiciary and the competition authority take opposing views toward the rights of SEP holders and SEP implementers.

This is an important step in JIPLP's publishing activities. In the past, authors have sometimes been reluctant to submit articles for publication because they did not appreciate that JIPLP -- a subscription-based title -- also accepted content on an open access basis. Such articles are not only acceptable but are actually welcomed, and will be published if they additionally satisfy JIPLP's peer reviewers of their merit.

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