Intellectual Property Rights, And Competition Law

Prof. K D Raju
Prof. Niharika Sahoo Bhattacharya
Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology, Kharagpur

Lecture - 43
Summary

Dear students this is the last part of this particular course, we were happy to offer this
particular course and there were a lot of objectives. Because, in India the IP and
competition law is a new area, a new branch of law and economics which came into play
very recently through a number of cases that came before the competition commission
and other relevant authorities.

So, the main objective of this course was to know about the interface, our focus of the
course was on the intellectual property versus competition law. So, what were the
different categories?In the beginning, in the first part of our course, it was introduction to
intellectual property law which contained all the 7 categories of intellectual property law;
starting from patents, trademarks, copyright and then geographical indications, integrated
circuits and undisclosed information and also the designs.

So, all 7 categories of intellectual property law were explained in the first part and in the
second part we discussed about the introduction to competition law. And, within the
competition law we tried to understand what are the two major domains of competition
law i.e. the abuse of dominance and anti-competitive practices. And after this particular
module which gave bare minimum of understanding of competition law, we moved to
competition law versus intellectual property law, that was the core of our course.

The core discussion of our course was on competition law and intellectual property law
and we discussed the different concepts of intellectual property law as well as the
competition law. So, simply we can see that in the interaction between intellectual
property and competition law the borderline is very thin. And intellectual property law
gives monopoly rights for a minimum period of time, at the same time the competition
law never prohibits monopolization, but it prohibits the abuse of monopolization.
And you can see the different categories of the competition law branch and different
prohibitions like in the areas of tying, cartelization and monopolization and the
geographical distribution of markets and so forth. And how these intellectual property
protection interfaces with the competition law, how the technology areas for example, in
the United States as well as in European Union the Microsoft was heavily fined. The
Microsoft was a major software company, not only software company. Because of the
technology, company was fined.

The reason was that the authorities in US as well as in the European Union found that
this company was engaged in different activities which were against the allowed
monopolization within the intellectual property framework. They violated some of the
provisions of the competition law. So, they were heavily fined, but when we come to
India, the branch of competition law itself is very new to the Indian authorities. And
according to the TRIPS agreement we fully complied with the intellectual property law.

So, we came out with a set of intellectual property legislations and then a new
competition law. So, the jurisprudence is simply emerging and the next part Niharika will
explain to you, in the second half, about the Indian law in detail. And, in the last part of
we were discussing about the different jurisdiction, a comparative jurisdiction of the US
as well as the European Union.

If you look into United States you can see that the antitrust law is considered as one of
the very important magna carta of business. Because, this is one of the first
country which came out with a law on competition. It promotes competition in the
United States. The antitrust law is very strong in the United States and is considered to
be one of the rich jurisprudence.

The rich jurisprudence which has emerged for a period of more than a century, is also
guiding principles to other countries as well. So, we discussed the pros and cons of the
antitrust law from the very beginning. And also in the module we discussed almost all
important cases with regard to competition law versus intellectual property law. And then
we switched over to the European Union as well as the Indian competition law.
So, these were the module which we covered. Actually entire course itself is modelled in
such a way that, the students of this particular course can understand the entire area of
intellectual property and competition law and whether they are really conflicting or
supplementing. And, we said many times that the competition law supplements the
intellectual property law rather than conflicting with each other.

And, my colleague Niharika will explain to you the next modules which we tried to
present before you.

Thank you sir.

Hello all. So, brief introduction was given by Professor Raju, after going through the
different fields of intellectual property law we are now in a position to understand that
the aspects of competition law are not restricted to patent per se, it is applicable
throughout all forms of the intellectual property law. And these are depending on the
jurisdiction whether it is US or European Union or India, the main motto of both IP and
competition law remains the same: to promote innovation and promote a fair competition
for the welfare of the society.

So, having set these two aims of IP and the competition law, in the Microsoft case
particularly the European court of justice has said that in case of these European Union
and particularly also in India, monopoly or dominance is per se not bad. However, abuse
of dominance is considered to be anti-competitive in certain cases. It is said that when
there is an IP holder, in addition to the intellectual property, there is a greater
responsibility for the dominant player or the IP holder.

And, further the case becomes much more complicated when this IP in the form of patent
or other than patent becomes the technological standard which becomes the standard
essential patent. So, the holder of the standard essential patent right has more
responsibility towards the society and towards the other probable licensees.

So that the development of the new products are not stopped or the consumer per se are
getting all the benefits as explained in the principles of the competition law. So, if you
look into the jurisprudence of India, India has basically followed the competition law
from the European jurisdiction. Earlier when there was MRTP Act, it basically got
inspired from the US Sherman’s Act and Clayton Act, where the act was basically to
control the monopoly.

But, when the Competition Act of 2002 came into practice, it is now more on the
following path of the European jurisprudence and law. And, if you compare US, India or
European Union; in India as well as the European Union, the European commission on
the competition or the Indian CCI; both are like administrative bodies which control the
anti-competitive behaviour of the various firms.

Whereas, in the US FTC Federal Trade Commission as well as the department of Justice
both of them take equal participation to determine the civil, the administrative as well as
the criminal sanctions on these things. But having said this, the main motto remains the
same to promote competition, fair competition and promote much more innovations. And
in the European cases we have dealt with many cases starting from the Microsoft, then
IMS and Magill, the jurisprudence was defined, the exclusionary abuse or exploitative
abuse has been taken into consideration.

And even the latest judgment in the Huawei versus Jetty took into account both the
Samsung and the Motorola decisions. And somewhere there is a responsibility from the
patent holder not to grant injunction or not to think about injunction when there is a
probable licensee who is willing to take your license under the FRAND terms. And, it is
not on the part of this licensee to say that the patents are not valid or invalidation claim
can be made.

So, as we saw through these cases, the jurisprudence is quite developing, also in case of
India the Micromax-Ericsson case was one of the landmark cases, where not only the
jurisprudential issue like a jurisdiction of the High Court has been challenged. So, these
are still in a developing phase and with the upcoming ICT technologies and this telecom
wars we are yet to see much more developments in this area; particularly in the Indian
system.

Since, in the European Union there are case laws as well as soft laws in the form of
guidelines whereas, the case laws has sometimes taken commission’s view point as well
as also taken into consideration the soft laws, but in case of the India our case laws are
just being developed.

So, much more developments are yet to be seen as the technology is developing and in
this course we just wanted to give you a basic understanding of this IP and competition
law, how these two fields of the study are complementary to each other. Individually IP
holder per se cannot enjoy all the right, when it is going against the principle of the
competition law.

We hope this course has been beneficial to you all and thank you for watching us
throughout this lecture series. And, we will wait for your comments and valuable
suggestions and we would be happy to answer your queries, if you have any.

Yes, I think the students have already completed half of the courses and the rest of the
courses are going on. And, we encourage all the students to read more on the issues. And
there is a one book available which I have written sometime back on IP and competition
law which you may read and also the reading materials are also uploaded. Please go
through that. So, the final question is not going to be too tough.

But definitely you have to complete the courses. And, we hope that this course is going
to get each one of you and when you will go ahead this is going to be an important area
of jurisprudence which is emerging between IP and competition law and this is a new
area of the course. As Niharika already said that our objective is only to give some basic
idea on the interplay between intellectual property and competition law.

So, we hope that this is going to be beneficial to all the students. And also we hope that
this is going to be in advance stage in sometime. And, we wish all the participants of this
course, all candidates of this course all the best for your remaining modules and also for
the exam.

So, thank you so very much.

All the best to you all. Thank you.

All the best to all of you. Thank you.