Dissertation Paper-Final by Vedika Verma

“COMPETITION LAW AND INTELLECTUAL PROPERTY RIGHTS IN
INDIA: UNDERSTANDING THE INTERFACE.”
Dissertation submitted to
SVKM’s Narsee Monjee Institute of Management Studies (NMIMS) in partial
fulfilment of the requirements
for the degree of
B.A., LL.B. (Hons.)
By
Vedika Verma
Under the Guidance of
Dr. SamraggiChakraborty
NMIMS School of Law
Bengaluru
2023-2024
NMIMS School of Law, Bangalore,2024-25

Certificate
The work described in this dissertation entitled “Competition Law And Intellectual
Property Rights In India: Understanding The Interface” has been carried out by Ms.
Vedika Verma under my supervision. I certify that this is his bonafide work. The work
described in this dissertation is original and has not been submitted for any degree to this or
any other university.
Date: Guide:
Place: Bengaluru
Assistant Professor
Head,
Department of Law
Dean, KPMSoL
SVKM’s NMIMS, School of Law
Bengaluru
2023-2024
2
Statement by the Candidate
This is to submit that this written submission in my dissertation entitled “Competition Law
And Intellectual Property Rights In India: Understanding The Interface” represents my
ideas in my own words and where others’ ideas or words have been included, I have
adequately cited and referenced the original sources. I also declare that I have abided by all
the principles of academic honesty and integrity and have not misrepresented or fabricated or
falsified any idea/ data/ fact/ source in my submission. I understand that any violation of the
above will be cause for disciplinary action by the School and can also evoke penal action
from the sources which have thus not been properly cited or from whom proper permission
has not been taken when needed.
This dissertation encompasses the information generated by me based on work carried out in
the school. I assure and hold full responsibility for its genuineness.
Ms. Vedika Verma
Forwarded Through
Academic Guide (s)
1.Name of the Guide : Dr. Samraggi Chakraborty
Designation: Assistant Professor of Law
Department of Law,
NMIMS School of Law,
Bannerghatta Main Road,
Kalkere,
Bengaluru - 560083
3
ACKNOWLEDGEMENT
I would like to acknowledge my sincere gratitude and warmest thanks to my guide, Dr.
SamraggiChakraborty for her patience and constant support throughout this dissertation. I am
extremely grateful for her encouragement and constant support throughout this dissertation. I
am extremely grateful for her encouragement throughout the process. I am sincerely grateful
for her invaluable guidance, support and suggestions to make this dissertation a successful
one. I am really inspired by her way of analyzing legal issues and would always be thankful
to her for the knowledge and the advice she has extended to me. I am appreciative for her
valuable co-operation and encouragement.
I would also like to thank our Campus Director, Dr. Narayani Ramachandran and the Sr.
Assistant Librarian Mr. Vansatha D. and all the library staff for providing access to various
resources for the completion of this research project along with their continued support
towards me. Finally, I would like to thank my batchmates and my parents for all the
unconditional support in this very intense and crucial academic year.
Vedika Verma
4
LIST OF ABBREVIATIONS
List of Abbreviations Definition

IPR Intellectual Property Rights
CL Competition Law
EC European Commission
EU European Union
NAFTA North American Free Trade Agreement
IPAB The Intellectual Property Appellate Board
UNCITRAL United Nations Commission on
International Trade Law
CPC The Code of Civil Procedure, 1908
OECD Organisation for Economic Cooperation and
Development
UC Unfair Competition
TM Trade Mark
GI Geographical Indication
PVR Plant Variety Protection
ID Industrial Design
FEMA Foreign Exchange Management Act, 1999
CCI Competition Commission of India
IDR Industries Development and Regulation Act
of India, 1951
MNCs Multinational Companies
FDI Foreign Direct Investment
MSMEs Micro, Small, and Medium Enterprises
MCA Ministry of Corporate Affairs
MLCBI Model Law on Cross-Border Insolvency,
1997
SBI State Bank of India
5
LIST OF CASES
Constein & Grundig v EEC Commission. 1966) Case 56/64 and 58/64, [1966] ECR 299
Cont’l Paper Bay Co v E Paper Bag Co, 210 US 405, 429 (1908)
Dentsche Grammophon v Metro Case (1971) ECR
Hoffman La-Roche v Commission, ECJ 13 Feb 1979
Morton Salt Co v GS Suppiger Co. 314 U.S. 488 (1942)
NDC Health v IMS Health, Case C-418/01
Nokia Corp. v. InterDigital, Inc.
CCI v. Ericsson 2014.
CCI v. AIOVA (2018)
6
TABLE OF CONTENTS
Table of Contents
Certificate...........................................................................................................................2
LIST OF CASES......................................................................................................................6
TABLE OF CONTENTS...........................................................................................................7
CHAPTER 1: INTRODUCTION................................................................................................9
1.1 Background........................................................................................................................11
1.2 Literature Review...............................................................................................................13
1.3 Research Objectives...........................................................................................................19
1.4 Research Statement............................................................................................................19
1.5 Research Questions............................................................................................................21
1.6 Research Methodology.......................................................................................................22
1.7 Research Methodology.......................................................................................................22
1.8 Hypothesis..........................................................................................................................23
CHAPTER 2: THE INTERRELATION BETWEEN INTELLECTUAL PROPERTY LAW AND
COMPETITION LAW IN INDIA.............................................................................................24
2.1 IP and Competition Law Objectives..................................................................................24
2.1.1 Conflict and Reward Theory in Intellectual Property...................................................................24
2.1.2 Modifications to IP's Goals and the Resultant Harmony..............................................................25
2.1.3 An Objective of Intellectual Property Law: Encouraging Competition.......................................25
2.2 Modifications in Light of the New Goals............................................................................26
2.3 Problems caused by a lack of competence..........................................................................26
2.4 Reason for the middle path................................................................................................27
2.5 When Does Each One Effectively Work?...........................................................................27
2.6 The Extracts Of Competition Law.....................................................................................28
2.7 IP IS SUPPORTED BY COMPETITION LAWS..............................................................28
2.8 The Difference Between Legal and Economic Monopoly...................................................29
2.9 IP vs. Other Competitors: Competition Law Thresholds...................................................29
2.10 Adherence vs. Policy in Competition Law........................................................................30
2.11 Analysing Mergers via Competition in the Context of Intellectual Property...................30
CHAPTER 3: THE REGULATORY, LEGAL, AND INSTITUTIONAL FRAMEWORK WHICH
GOVERNS THE COMPETITION LAW AND INTELLECTUAL PROPERTY IN INDIA.....................32
3.1 Legislative Evolution..........................................................................................................32
3.1.1 MRTP Act of 1969...........................................................................................................................32
3.1.2 Suggestions of the Raghavan Committee.......................................................................................34
3.2 Scope of Section 3 & 4 Competition Act, 2002...................................................................34
3.3 Competition law and IPR...................................................................................................38
7
3.3.1 Agreements pertaining to Intellectual Property Rights (IPRs) in both horizontal and vertical
orientations................................................................................................................................................38
3.3.2 Extent of Section 3(5).......................................................................................................................39
3.3.3 'Essential for safeguarding'.............................................................................................................39
3.3.4 The factor of public welfare............................................................................................................40
3.4 Agreements on the granting of licences..............................................................................40
3.4.1 Potential Licencing Challenges Related to Competition...............................................................41
3.4.2 Indian Legal System's Approach to Licencing Standard Essential Patents.................................42
3.4.3 Denial of Intellectual Property Licence..........................................................................................43
3.5 Using intellectual property rights as a defence against the abuse of dominance................45
3.6 Exorbitant pricing..............................................................................................................46
CHAPTER 4: COMPARATIVE ANALYSIS OF COMPETITION LAW AND INTELLECTUAL
PROPERTY RIGHTS IN THE EUROPEAN UNION, UNITED KINGDOM, AND UNITED STATES OF
AMERICA...........................................................................................................................47
4.1 Global Perspective..............................................................................................................47
4.2 The European Union..........................................................................................................49
4.3 The United Kingdom..........................................................................................................51
4.4 The United States of America.............................................................................................52
4.5 Implications for India.........................................................................................................54
CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS......................................................56
5.1 Summary of Findings.........................................................................................................59
5.2 Recommendations..............................................................................................................60
BIBLIOGRAPHY..................................................................................................................62
Articles Referred......................................................................................................................62
Books Referred........................................................................................................................62
Papers Referred.......................................................................................................................62
Websites Referred....................................................................................................................63
8
ABSTRACT
The world has drastically changed since globalisation. Markets are essential to all economies,
regardless of whether they are developed or developing. With the rapid advancement of
technology, there is a great concern about the risk of original work being duplicated and
losing its competitive advantage. This necessitates the need for increased security standards.
Intellectual property rights confer unique privileges over intangible intellectual property. IP is
a valuable asset that can generate profits for a businesses. As a result, firms engage in the
commercialization of intellectual property rights (IPR) at many levels, including functional,
business, and worldwide. Commercialization offers the advantage of gaining a competitive
advantage. However, this process involves sharing certain information with others, which
might generate issues for the owners of particular goods or services. The correlation amongst
the protection of intellectual property laws and competition laws is significant, and adherence
to both is essential for the efficient operation of the market. Consequently, it is necessary to
maintain a regulatory equilibrium within the two. Intellectual property rights grant the owners
an exclusive authority to conduct themselves in a specific manner, whereas competition law
endeavours to maintain the integrity of markets. Alternative scholars have contended that the
two do not contradict one another in reality or application; on the contrary, they mutually
reinforce one another. Consequently, the inquiry arises as to whether an irreconcilable
disparity exists amongst the two domains of law. This paper attempts to demonstrate the
relationship within the two facets of law and to suggest a solution that would mitigate the
apparent conflict between them.
This paper shall delineate the domains where an equilibrium may be achieved. Additionally,
this research determines how the Indian judicial system and legal framework have addressed
the conflict. It will commence by comprehending the objectives and aims of competition law
and intellectual property rights. This paper will furnish the context from which the purported
dispute emerges. A comparative analysis will be conducted with other jurisdictions in order to
provide guidance on the optimal course of action for India regarding the interface. The study
will culminate in a conclusion regarding the relationship between the two areas and will
include recommendations based on the issues identified.
Keywords: Competition laws, Intellectual Property Rights, Commercialization, Market.
9
CHAPTER 1: INTRODUCTION
Obstacles to competition law and policy have arisen in the modern economy due to the
emergence of new technologies. Public and private enterprises alike have cited innovation as
a major factor in their recent economic success. While new technology and innovation
primarily affect the industrial and telecommunications industries, they permeate many other
parts of the economy as well.1 Thanks to the availability of new products and services, new
markets have grown and the economy has been revitalised. One of the main drivers of
innovation is intellectual property, and as a result, there has been a lot of focus on the inter-
section between IP and competition law. This is due to the fact that under conventional
wisdom, ideas around intellectual property seem to be at odds with regulations governing
competition. "Competition law and intellectual property have never been easy bedfellows,"
said the ruling from the ECJ in the case “NDC Health vs. IMS Health” 2. Competition and
Intellectual property law are often thought to be at odds with one another, although there are
scholars who contend that this is overstated and that the two really work together. At their
intersection, two fundamental questions arise: given the polarity of these two camps, “how
can we reconcile the apparently competing goals of incentivizing and rewarding individual
innovators and keeping markets open to their competitors?”3
“Both organisations of legislation share the same fundamental goal of promoting consumer
welfare and an efficient allocation of resources,” goes the conventional wisdom on the
relationship between the IP rights and laws on competition. By incentivizing businesses to
spend in research and development of new or enhanced products and processes, intellectual
property rights foster dynamic competition. Additionally, competition encourages innovation
through applying pressure on businesses to do so. Thus, IPR and competition are both vital
for encouraging innovation and guaranteeing its competitive and market utilisation.
1
Robert Pitofsky,Challenges of the New Economy: Issues at the Intersection of Antitrust And Intellectual
Property,ANTITRUST LAW JOURNAL,(2011), http://www.jstor.org/stable/40843501.
2
NDC Health v. IMS Health [2004] All E.R. (E.C.) 813; see also, Ian Eagles, Copyright and Competition
Collide,THE CAMBRIDGE LAW JOURNAL, 564-566, (2004), http://www.jstor.org/stable/4500832.
10
There are two distinct systems of law, intellectual property laws and competition law, and
each serves a unique purpose. IPRs grant the exclusive right to the author or inventor to use
and enjoy their creation or invention without anybody else's interference. Additionally, it
grants rights holders a great deal of leeway in deciding how to use or licence their intellectual
property, and it protects creators against copyright infringement. Innovation is a primary
driver of economic growth and development since it creates new goods, markets, and
technology while simultaneously serving as an important input into and result of intellectual
property. So, intellectual property is a very valuable asset, and the world's nations have given
it a lot of legal protection.
In contrast, competition law works to keep markets competitive. Encouraging new entrants to
the market and preventing monopolisation of production are its primary goals. It heralds a day
when market forces can operate freely and fairly. Efficient resource allocation, better static
and dynamic efficiencies, and a regulatory climate free from abuse of market power are all
outcomes of well-crafted and well-executed competition rules.
Although there is a significant overlap between IP law and competition law, the two bodies'
aims are fundamentally opposed. On the other hand, creators and innovators get monopolies
or exclusive rights when they own intellectual property. With these monopolistic rights comes
the potential for massive market dominance, which might be utilised to stifle rival businesses.
The creation of an IP right has the potential to limit free and fair trade. To encourage
innovation and guarantee its competitive exploitation, IP rights (IPRs) and competition policy
are essential. Therefore, the primary goal of legislation is to eliminate conflicts and establish a
balance between IP rights and competition policy so that they can coexist. Three theoretical
frameworks have been proposed to achieve the union of intellectual property rights and
competition law systems:
(1) It is argued that competition law should intervene to safeguard innovation and intellectual
property rights only in cases where social welfare is at risk.
(2) Monopoly and concentrated markets are believed to be more innovative than competitive
markets due to their greater access to capital and resources.
(3) Competition law is often perceived to prioritise consumer welfare only when the impact
on innovation and manufacturing efficiency is neither positive nor negative.
11
On account of its unique attributes, intellectual property could be regarded as an indispensable
asset. Achieving equilibrium is of the utmost importance in the framework of intellectual
property rights(IPR) and competition regulations. The objective of competition laws is to
restrict the excessive use of intellectual property by businesses, a practice that may contradict
the motivations for innovation offered by IPRs. When competition prioritises ensuring access
for existing players (static access) over encouraging future innovation (dynamic competition),
this tension is especially pronounced. However, well-structured complementary systems are
possible between these two. By protecting IPRs, a balanced approach fosters innovation,
whereas competition law prevents the stifling of technology transfer and information sharing.
Comprehending this concept is critical for policymakers and legal practitioners in order to
formulate efficacious legislation, ensure equitable enforcement, and ultimately cultivate a
legal climate that promotes innovation while maintaining market competitiveness.
So yet, India's competition laws and IP laws have not been thoroughly studied. By comparing
India with other developed jurisdictions, this paper hopes to gain a better grasp of the ways in
which the two branches of Indian law interact with one another.
1.1 Background
Making and maximising profit margins is the holy grail of business and enterprise. When
done right, it fuels growth in the economy and development. People, markets, and society at
large are all at risk when rapid economic expansion leads to the consolidation of powerful
economic forces. Regulating and discouraging the abuse of enormous economic powers is
necessary to establish efficient markets and improve consumer welfare. Thus, maintaining
market equilibrium is greatly aided by competition. First, in order to produce high-quality
products and services at affordable rates, competition drives innovation and makes better use
of resources.4 Second, it levels the playing field so that new businesses have a chance to thrive
in the marketplace. But inefficient marketplaces and anti-competitive activities are the results
of impediments to competition.5 The misuse of market dominance or a lack of effective
government regulation, either in terms of legislation or the application of existing regulations,
is the root cause of these obstacles.6
4
Cornelius Dube, “Intellectual Property Rights and Competition Policy,” CUTS INTERNATIONAL, (2008),
http://www.cuts-international.org/pdf/viewpointpaper-IPRs-CompPolicy.pdf
5
Supreet Kaur,“Interface Between Intellectual Property and Competition Law,” SSRN,
(2011),http://ssrn.com/abstract=1802450.
12
The goal of competition policy and law is to encourage free and fair trade by removing
obstacles to entry and other forms of government interference. Competition law regulates any
conduct that could potentially harm the competitive landscape. Some examples of these
activities include mergers, public limits on competition, abusive actions by dominant
businesses with strong market power, and agreements to control prices, share the market, or
limit output. Redistribution of economic power and wealth is one goal of competition law,
which aims to safeguard both consumers and rivals. The creation of a competitive market,
however, requires more than just the passing of competition laws. Why? Because the outside
environment in which a corporation operates has a significant impact on the economy's
competitiveness, in addition to the firm's own actions. It is necessary to evaluate the important
economic sectors and their influence on market competition in order to evaluate an economy's
competitiveness and implement suitable changes.7
Conversely, intellectual property (IP) has traditionally been understood as the

acknowledgement, preservation, and promotion of concrete manifestations of human
innovation. What we call "the law of the mind" actually governs the ownership of ideas and
other forms of original creative expression. Any creative work, new idea, trademark, or design
can be considered intellectual property. 8 The right to own and use one's own ideas and
creations is known as intellectual property. One reason for this is that giving creators financial
and moral exclusivity over their creations encourages them to keep inventing. 9 Second, IP
encourages product differentiation via innovation-driven new product development, which in
turn increases consumer choice and competitiveness in the market. 10 In the third place, IP
protects ideas and information while also promoting their dissemination, which in turn boosts
innovation.
6
Carlos M. Correa, “Intellectual Property and Competition Law: Exploring Some Issues of Relevance to
Developing Countries,” (2007), http://www.iprsonline.org/resources/docs/corea_Oct07.pdf.
7
Nick Godfrey, “Why is Competition Important For Growth and Poverty Reduction?” ,OECD Global Forum on
International Investment,(2008), http://www.oecd.org/investment/globalforum/40315399.pdf.
8
William Cornish, David Llewelyn & Tanya Aplin, Intellectual Property: Patents, Copyright, Trade Marks And
Allied Rights, Sweet & Maxwell, London 8th Ed, (2013).
9
Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases and Materials, OXFORD
UNIVERSITY PRESS, OXFORD pp4-13, (2013)
10
World Intellectual Property Organisation,“World Intellectual Property Report Brands – Reputation and Image
in the Global Marketplace,” (2013),
http://www.wipo.int/edocs/pubdocs/en/intproperty/944/wipo_pub_944_2013.pdf(last visited Mar. 6, 2024)
13
The rise of the knowledge-based economy and unprecedented rates of innovation have
brought intellectual property into the spotlight in recent years. As a result, people are more
cognizant of the need to safeguard intellectual property. The examination of the interplay and
consequences of intellectual property on various sectors of the economy, particularly market
rivalry, has become imperative in light of this acknowledgment and safeguarding.
1.2 Literature Review
A wealth of scholarly literature exists on the interplay of Competition Law and Intellectual
property Rights (IPRs), spanning various formats including books, journal articles, and
reports. This body of work offers invaluable insights into the complex dynamics and policy
implications of this interface, catering to diverse audiences such as scholars, policymakers,
practitioners, and stakeholders.
1. “Intellectual Property And Competition Law: Divergence, Convergence, And

Independence.”11
Geetanjali Shankar and Nikita Gupta explored the historical divide between antitrust law
and intellectual property (IP), revealing differing approaches to monopoly regulation.
They propose reconsidering intellectual property as a tool for competition control. To
accomplish this convergence, they offer a few guidelines: first, only increasing IP rules
through legislation rather than judicial interpretation; and second, prioritising
interpretations that promote free markets and fair competition during IP enforcement.
The authors suggest that antitrust and intellectual property law should have separate
operational domains, emphasising IP's focus on rights assignment and defence vs
antitrust concern with market usage. They argue that antitrust laws focuses on abuse
rather than attacking the exclusivity of intellectual property rights, with the goal of
preventing unfair trading practices. Shankar and Gupta argue that economic and legal
monopolies should be treated separately, under antitrust and intellectual property law.
They argue that antitrust law's purpose is to prevent IP owners from abusing their rights,
hence strengthening the IP system.
“Anti-Competitive Strategies Hamper Access to Medicines in Europe.”12

11
Nikita Gupta and Gitanjali Shankar, “Intellectual Property and Competition Law: Divergence, Convergence
and Independence,” NUJS LAW REVIEW, VOL.4, (2011), pp.113-132,
http://nujslawreview.org/wp-content/uploads/2016/12/gitanjali.pdf
12
Katrina Perehudoff & Sophie Bloemen, “Anti-Competitive Strategies Hamper Access to Medicines in Europe,”
AMSTERDAM LAW FORUM, Vol.3, 2011, pp 81-87,
https://www.researchgate.net/publication/228234879_Anti-
14
According to Katrina Perehudoff and Sophie Bloemen, anti-competitive strategies like
defensive patenting and vexatious litigation have enabled the market's top
pharmaceutical companies to maintain their dominance, generating excessive profits at
the expense of the general public's welfare and impeding widespread access to necessary
medications. The original purpose of the patent system, which was to allow innovators to
recoup their R&D expenses while also encouraging additional innovation, is undercut by
these behaviours. Remarkably, comparable patterns are noted in the field of patents
related to technology. For example, in the context of standard essential patents, needless
lawsuits and calculated opposition from bigger businesses could stifle competition and
push out smaller and medium-sized businesses. Such actions discourage incentives for
creativity and innovation in addition to stifling competition.
2. “Antitrust and Innovation: Where We Are and Where We Should Be Going.”13

In his critique of the historical tendencies of intellectual property law and competiton
law, Herbert Hovenkamp argues that these laws have frequently failed to effectively
promote innovation because they either overly protect companies from competition or
grant intellectual property rights in excess of what is required to spur innovation.
Although patents are no longer seen as monopolies but rather as property and assets, he
argues that because they are not subject to the same restrictions as other types of
property, they can overprotect and allocate resources inefficiently. Hovenkamp puts up a
number of antitrust guidelines for innovation-driven marketplaces, highlighting the
necessity of intervening only when essential to foster innovation or competition. He
makes the argument that, in certain situations, innovation should take precedence over
competition and that not all IP methods are inherently illegal under antitrust rules.
Furthermore, he supports ongoing assessment, he supports an ongoing review of
intellectual property laws to make sure they successfully foster competition, akin to the
examination given to antitrust laws.
3. “Antitrust treatment of oligopolies with mutually blocking patent portfolios.”14
Competitive_Strategies_Hamper_Access_to_Medicines_in_Europe
13
Howard Hovenkamp, “Antitrust and Innovation: Where we are and where we should be going”, ANTITRUST
LAW JOURNAL, VOL.77, (2010-11), p.749-759, https://scholarship.law.upenn.edu/faculty_scholarship/1832/
14
John H Barton, “Antitrust Treatment of Oligopolies with Mutually Blocking Patent Portfolios,” ANTITRUST
LAW JOURNAL, VOL. 69, NO. 3 (2002), pp. 851-882,
https://www.researchgate.net/publication/241658721_Antitrust_treatment_of_oligopolies_with_mutually_blocki
ng_patent_portfolios
15
John Barton examines the antitrust ramifications of oligopolies using intellectual
property rights (IPRs) as a means of blocking entry into new markets by competitors.
Under such circumstances, oligopolistic companies have huge portfolios of patents that
are violated by rivals; nonetheless, lawsuits are frequently averted out of concern for
retaliatory actions, leading to an unspoken licencing agreement among the oligopolists.
This dynamic ultimately stifles innovation by creating a perverse incentive for
businesses to acquire patents only for defensive purposes as opposed to funding new
research. Furthermore, oligopolists' possession of cross-infringing patents creates
obstacles to entry for possible rivals, which discourages innovation even more. In order
to make sure that the intellectual property system promotes innovation rather than
inhibits it, Barton is an advocate for reforming the patent laws and applying antitrust
legislation sparingly.
4. “Examining the Interface Between the Objectives of Competition Policy and

Intellectual Property.”15
The United Nations Conference on Trade and Development (UNCTAD) report carefully
examines the goals of both legal frameworks: competition law and intellectual property
rights. It explains how competition law plays an important role in preventing undue
stifling of competition by IPRs and thus promoting economic development. The report
meticulously examines the various approaches taken by countries to strike a balance
between these goals, such as implementing exemptions for certain IPR practices under
competition laws and empowering competition authorities to scrutinise potentially anti-
competitive licencing agreements. It emphasises the need of international collaboration
and harmonisation in creating a level playing field for innovation and competitiveness
across several jurisdictions, hence promoting global economic advancement.
5. “The interface between IPR and Competition Law(2011).”16
The researcher investigates the apparent conflict between the purposes of competition
law and intellectual property rights (IPR), but discovers a common underlying intent.
15
“Examining the interface between the objectives of competition policy and intellectual property,” United
Nations Conference on Trade and Development, (2016),
https://unctad.org/system/files/official-document/ciclpd36_en.pdf.
16
Supreet kaur, “Interface between Intellectual Property and Competition Law: Essential Facilities Doctrine,”
SSRN, (2011), https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1803140_code1639281.pdf?
abstractid=1802450&mirid=1
16
Despite their diverse methods, both competition law and intellectual property rights
ultimately seek to benefit consumers. IPR acts as a powerful motivator for innovation,
encouraging the creation of superior products and services throughout time. Meanwhile,
competition law ensures that customers may obtain these technologies at reasonable
prices and have a wider range of options. The author discusses particular examples
demonstrating how comprehensive IPR protection has accelerated the production of
revolutionary technologies. However, it recognises the possible consequences of
excessive protection, such as higher consumer costs due to limited competition.
6. “The interface between IPR and Competition Law”.17

The author explains the tension between intellectual property rights (IPR) and
competition law is a widely debated topic. While IPR can promote monopolies,
competition law aims to prevent them, creating a conflict. Initiatives like parallel imports
and compulsory licenses are used to address anti-competitive behaviour within IPR
regulations. However, both IPR and competition law share common goals of fostering
innovation and protecting consumer welfare. The need for harmonizing these laws is
emphasized to strike a balance between incentivizing innovation and preventing
monopolistic practices. Courts often rely on bodies like the Competition Commission of
India (CCI) to adjudicate disputes between IPR and competition law, affirming its
authority in these matters. Overall, reconciling the objectives of IPR and competition
law is crucial for promoting innovation and economic growth while safeguarding
consumer interests.
7. “Between Competition Law and Patents Law: A Pandora Box.”18

The article provides useful insights into the complicated link between patents and
competition law, giving light on the issues and complications that come from their
confluence. It serves as a foundational piece for understanding IPRs’ developing
position within the larger framework of competition law. However, the article's primary
focus on jurisdictional conflicts, as well as its reliance on EU and US law examples,
limit its application to the Indian setting.
While the research makes clear solutions for addressing the challenges raised, some of
these suggestions may appear impracticable given the existing state of competition and
17
Vatsala Sood, “The interface between IPR and Competition Law, Legal Bites” (2023),
https://www.legalbites.in/interface-between-ipr-and-competition-law/
18
Teotia M, and Sanwal M, “Interface Between Competition Law And Patents Law: A Pandora Box”, SSRN
Electronical journal, (January 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775567.
17
intellectual property regulations. As a result, while acknowledging the importance of the
insights presented, more research is needed to contextualise these findings within the
framework of Indian laws and regulations. This will result in a more thorough
understanding of the issues and opportunities presented by the interface of IPR and
competition law in India.
8. “Competition Policy And Intellectual Property in Todays’ Global Economy.”19

The authors have investigated the complex and multifaceted dynamics of competition
policy and intellectual property rights (IPR) in the global economy. They acknowledge
the crucial role of intellectual property rights (IPR) in promoting innovation, while
highlighting the need to find a delicate equilibrium between safeguarding IP and
fostering fair competition, ultimately benefiting consumers. However, the complexities
of this relationship demand additional research to address new concerns such as the
implications of evolving technology, the impact of international trade agreements, and
the pursuit of harmonised competition rules across varied jurisdictions. This in-depth
analysis will help us better comprehend the changing picture at the intersection of
competition policy and intellectual property rights, allowing for more informed
policymaking and strategic decision-making in an ever-changing global economy.
9. “The Application of Competition Policy vis-à-vis Intellectual Property Rights: The

Evolution of Thought Underlying Policy Change.”20
The authors emphasise the need for additional research into new concerns, such as the
dramatic influence of digitization and future technologies on both competition dynamics
and the landscape of intellectual property rights. This ongoing investigation will help
policymakers and stakeholders to stay current on growing trends and complexities,
allowing for more informed decision-making and the establishment of effective
regulatory frameworks to negotiate the ever-changing terrain of competition and IPRs.
19
Anderson , R.D., de Carvalho, N.P. and Taubman, A., “Global economy s intellectual property in today
competition”,CAMBRIDGE UNIVERSITY PRESS, (2020),
https://assets.cambridge.org/97811071/94366/frontmatter/9781107194366_frontmatter.pdf.
20
Anderson, R.D. and Kovacic, W.E. “The application of competition policy vis-À-vis intellectual property
rights”, WTO WORKING PAPERS, (2017), https://www.wto.org/english/res_e/reser_e/ersd201713_e.htm.
18
10. “The Inevitable Connection between Intellectual Property and Competition Law:
Emerging Jurisprudence and Lessons for India.”21
The author provides a much-needed overview of the evolving landscape of IP-based
competition litigation, notably in India, as demonstrated by the Aamir Khan case. By
diving into the expanding IP versus Competition Law argument and discussing solutions
to reconcile these competing interests, the paper effectively illustrates the subject's
growing relevance, particularly in light of major instances such as the FICCI Multiplex
cartel case. However, one significant drawback of the paper is its tendency to analyse
this argument on a case-by-case basis, which may fail to convey the broader context and
intricacies inherent in India's changing legal structure. Furthermore, the article's
generalised ideas may not be immediately applicable, given the fledgling stage of Indian
law in this domain, which has yet to evolve to the point of comparison with established
jurisdictions such as the European Union or the United States. Thus, while the article
gives useful insights into the junction of intellectual property and competition law in
India, future research should seek to contextualise these observations within the
country's distinctive legal and regulatory framework. This would allow for a more
nuanced understanding of the challenges and possibilities that arise when balancing
these competing interests, as well as the creation of specialised solutions to effectively
address them.
11. “Competition Policy and Intellectual Property Rights.”22

The OECD study dives into the complex relationship between competition policy and
intellectual property rights (IPRs), addressing the difficult balance between promoting
competition and protecting IPRs in the context of innovation and economic
development. It chronicles changing attitudes on the topic, from viewing IPRs as
intrinsically limiting competition to recognising their ability to produce competitive
benefits. The article also discusses the difficulties in balancing the requirement of
preserving intellectual property with the need to maintain a competitive market.
Furthermore, the article emphasises the importance of international cooperation and
policy alignment in successfully navigating the junction of competition policy and
intellectual property rights on a global scale. By emphasising the necessity of policy
21
Raju KD, “Interface Between Competition Law And Intellectual Property Rights: A Comparative Study Of
The US, EU And India,” (2012), https://nopr.niscpr.res.in/bitstream/123456789/16395/1/JIPR
%2018%282%29%20111-122.pdf
22
“Competition policy and intellectual property rights, Organization of Economic Cooperation and
Development,” OECD, https://www.oecd.org/regreform/sectors/2376247.pdf
19
harmonisation across jurisdictions, it advocates for a united strategy to addressing the
problems that arise as a result of this interaction.
12. “The Interface of Competition and Intellectual Law – Taking Stock and Identifying
New Challenges.”23
The author highlights the necessity of a nuanced approach that prioritises dynamic
competition while avoiding undue privileging of market power. They emphasise the
critical role that competition policy plays in fostering innovation and market growth. The
author also highlights the interconnectedness of intellectual property (IP) rights and
competition policy, arguing that both are essential for economic advancement. While IP
rights can drive innovation, the author acknowledges the risk that these rights will be
abused for anti-competitive purposes. The author suggests potential reforms within the
patent system in order to address competition issues in IP markets. Lastly, the author
advocates for targeted enforcement of competition laws against IP rights abuses to
protect innovation and consumer welfare.
1.3 Research Objectives

This study article encompasses both a general overarching purpose and specific objectives,
which are outlined as follows. The general aim of the research is to conduct a comprehensive
analysis of the correlation between competition law and intellectual property law, with a
particular emphasis on India.
The forthcoming discussion will focus on the precise objectives outlined below:
1. A complete investigation is necessary to understand the extent of divergence and

convergence within the competition law and intellectual property laws.
2. To assess the degree of autonomy exhibited by these two legal domains by examining
numerous legal cases.
3. To evaluate the degree to which the Indian regulatory, legal, and institutional
framework regulates the connection between competition law and intellectual property
laws; and
4. To ascertain the extent to which India can learn from developed jurisdictions
regarding the handling of the relationship between these two apparently conflicting
23
Pedro Caro de Sousa, “The Interface of Competition and Intellectual Law – Taking Stock and Identifying New
Challenges,” SSRN, (November 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3279355.
20
areas of law, specifically the United Kingdom (UK), the European Union (EU), and
the USA.
1.4 Research Statement

Over the course of its five organised chapters, the dissertation titled “Competition Law and
Intellectual Property Rights in India; Understanding the Interface” applies a doctrinal
approach.
The first chapter will give a concise overview of the topic being studied. This will provide an
introduction to the research, the research difficulties and reasons for the study, and present the
research methodology that was used in conducting the research.
The second chapter titled the intersection within intellectual property law and competition law
in India. This comprehensive analysis will explore the purpose as well as goals of both
Competition law and IPR, followed by an examination of the differences and similarities
between the two, supported by relevant judicial precedents. This will provide a framework for
discussing the connection between the two in the Indian context.
The third chapter named the legal, regulatory, and institutional structure that oversees
intellectual property and competition legislation in India, as stated in the third chapter. In this
chapter, we will evaluate the legal provisions of the Indian Competition Act that have an
impact on intellectual property rights, and examine how the law has been enforced in relation
to this issue. This chapter will also take into account the effectiveness or ineffectiveness of the
law in addressing the apparent conflict between the two.
In the fourth chapter, we delve into a comparative study of three highly advanced
jurisdictions: The United Kingdom, The United States of America, and The European Union.
These jurisdictions are known for their expertise in competition law, as well as intellectual
property law. An analysis of the enforcement and implementation of competition law in the
country can offer valuable insights into how the relationship among competition law and
intellectual property should be managed in India.
Finally, the fifth chapter, titled "Conclusion," will cover a summary of the findings,
conclusions, and suggestions regarding the implementation of competition law on intellectual
21
property rights in India. The researcher acknowledges that the final submission might differ
slightly due to different interpretations of the law and advancements in the study.
1.5 Research Questions

In this study, we want to answer the following questions:
1. What do laws pertaining to intellectual property and competition seek to achieve?

2. The second question is whether intellectual property law and competition law are
incompatible?
3. How explicitly does the Indian system of law, regulation, and institutions address the
relationship between IP and competition law and Is it all-encompassing too?
4. How can India learn from the intersection of IP law and competition law from the
United States, the European Union, and the United Kingdom?
1.6 Research Methodology

The method employed to collect information for this paper involved utilising both library
resources and online sources. It was recommended to utilise both library and internet sources,
drawing from the literature available in well-established jurisdictions. This would serve as a
solid foundation for conducting research in an area that has yet to be explored in India. This
research aims to serve as a foundation for future investigations in the field.
Extensive research conducted in libraries and online helped establish a solid foundation for
the study by examining previous literature on the subject. Utilising qualitative research, an
analysis was conducted on the connection between competition law and intellectual property.
This involved studying their individual goals and objectives, as well as identifying areas of
divergence and convergence. Extensive research was conducted, including an analysis of legal
documents, published works, academic papers, journal articles, and studies conducted by
competition or anti-trust and intellectual property organisations.
An analytic technique is used in the research to examine how other jurisdictions have
developed and implemented their laws pertaining to the subject being studied. The
comparative study examines the case laws and published guidelines of the relevant
jurisdictions to establish a framework for how the relationship between the two areas of the
law should be approached.
22
1.7 Research Methodology
The method employed to collect information for this paper involved utilising both library
resources and online sources. It was recommended to utilise both library and internet sources,
drawing from the literature available in well-established jurisdictions. This would serve as a
solid foundation for conducting research in an area that has yet to be explored in India. This
research aims to serve as a foundation for future investigations in the field.
Extensive research conducted in libraries and online helped establish a solid foundation for
the study by examining previous literature on the subject. Utilising qualitative research, an
analysis was conducted on the connection between competition law and intellectual property.
This involved studying their individual goals and objectives, as well as identifying areas of
divergence and convergence. Extensive research was conducted, including an analysis of legal
documents, published works, academic papers, journal articles, and studies conducted by
competition or anti-trust and intellectual property organisations.
An analytic technique is used in the research to examine how other jurisdictions have
developed and implemented their laws pertaining to the subject being studied. The
comparative study examines the case laws and published guidelines of the relevant
jurisdictions to establish a framework for how the relationship between the two areas of the
law should be approached.
1.8 Hypothesis
This research is based on the author's hypotheses that:-
i. The goals and objectives of competition law and intellectual property law are in
conflict and can be resolved.
ii. An intricately structured legal structure that precisely defines the authorised extent
of intellectual property exclusivity, while actively enforcing rules against anti-
competitive behaviour, can effectively achieve a peaceful equilibrium between
motivating innovation and protecting consumer well-being.
iii. Essentially, the hypothesis suggests that a balanced approach to intellectual
property (IP) protection and competition/antitrust principles can be achieved by
implementing a system that establishes clear boundaries for IP exclusivity and
enforces strong competition regulations to prevent abusive behaviour by IP
holders. The research would thereafter assess whether current rules and regulations
achieve this harmonious equilibrium or if modifications are necessary.
23
iv. There is a necessity for comprehensive guidelines that will establish a harmonious
equilibrium between safeguarding the rights derived from intellectual property and
upholding a fair and competitive market, as mandated by competition law.
24
CHAPTER 2: THE INTERRELATION BETWEEN INTELLECTUAL PROPERTY
LAW AND COMPETITION LAW IN INDIA.
The Cascading Transition from The divergence to Convergence
2.1 IP and Competition Law Objectives
Protected by law, intellectual property rights ("IPRs") grant their owners a chance of
opportunity to profit from their creations/inventions. Conversely, the goal of competition law
is to ensure that legitimate businesses can continue to engage in market activity. Let me put it
simply: IP safeguards individual interests, while competition safeguards the market.
Consequently, it is immediately assumed that the two types of regulatory mechanisms are at
odds with one another.
2.1.1 Conflict and Reward Theory in Intellectual Property
The fact that intellectual property law has traditionally focused on the philosophy of
rewarding creators and inventors lends credence to the idea that there is such a conflict. 24
Intellectual property laws were originally enacted to incentivize innovators to share their
discoveries with the public, a practice that would have otherwise been frowned upon. Society
compensated the creator with protections afforded by intellectual property rights (IPRs) so
that the inventor would release his work/creation to the public. 25 So, the right of the
innovator/creator as an individual came into sharper relief. Society would also get benefits
from IP protection, which was not originally planned.
The tension between IP and competition becomes more clearer when the focus of IP
legislation is on the more conventional connection between investors and the public. At this
point, IP and competition policy are completely different and aim to achieve different things.
IP aims to safeguard and compensate innovators through the award of exclusivity, while
competition law protects markets through the enhancement of access, which inherently
conflicts with the exclusivity granted by IP.
24
For instance, patents can be traced back to the Middle Ages where inventor privileges took the form of royal
grants, Holyoak & Torreman, Intellectual Property Law, Paul Torremans ed., (2008).
25
Meir Perez Pugatch, The Intellectual Property Debate: Perspectives From Law, Economics And Political,
EcoNouv, Meir Perez Pugatch ed., (2006).
25
2.1.2 Modifications to IP's Goals and the Resultant Harmony
The concept of what should be rewarded, has evolved over time. Motivating innovation and
creativity by the provision of incentives is more important than publicly disclosing the
invention itself. The first step towards a harmonious relationship between IP law and
competition law is to admit that the former is a subset of the latter. As a result of this shift, IP
law is no longer focused on individuals. As a result, society as a whole benefits from more
innovation, but the right-holders' private interests are also satisfied 26. Due to the fact that
increased competition is the end goal of such innovations, there is less of a divide between IP
law and competition law. Because of their complexity and dialectic relationship, these two
areas of law can accommodate seemingly competing goals while ultimately working towards
a common objective: improving innovation's competitive dynamics.
During an era when their economic impacts were not well understood, competition law
imposed excessive restrictions on the use of intellectual property rights. Research over the
years has lent credence to the idea that safeguarding intellectual property is not at odds with
fostering healthy competition in the marketplace.
2.1.3 An Objective of Intellectual Property Law: Encouraging Competition
No one ever intended for "anti-trust laws" to benefit envious rivals who want to force a
successful rival to give up their hard-earned money. To promote efficiency, competition/anti-
trust law protects the competitive process as a whole, not any one competitor; hence,
competition law aims to safeguard petition, not competitors.27
The fundamental purpose of intellectual property rights—that is, to discourage innovation by

stopping others from profiting off of an innovator’s creative output or its goodwill—has never
been challenged or altered by competitive laws. Since the former encourages enterprises to
manufacture their own commodities in order to prevent free-riding, which in turn leads to
competition, the latter fails to recognise the function of IP in fostering competition.
2.2 Modifications in Light of the New Goals
Due to the fact that both areas do overlap, competition policy's foundational premise of free
competition must also be considered when interpreting IP law's framework.
26
Gustavo Ghidini, Intellectual Property And Competition Law: The Innovation Nexus, (2006).
27
Christopher M. Kalanje, The Role of Intellectual Property in Innovation and New ProductDevelopment,WIPO,
https://iettn.ieee-ies.org/role-intellectual -property-innovation-new-product-development/
26
Two main recommendations arise, however they are not definitive. The first is the
requirement for a comprehensive and rigorous categorization of IPRs. The aforementioned
goal does not apply to IPRs because they serve primarily to limit competition. The expansion
of IPRs could only be legislated, and not interpreted, into law. Consistent with this line of
thinking is an additional expansion of this rule: IP law's functions should not be covertly
transferred to other areas of law, such as competition law, even though those other areas may
deal with IP-protectable subject matter in the course of their respective missions. Thus, the
rights and protections bestowed by the IP regime must be unaffected by any attempts by
competition law to expand or diminish them, even where such efforts relate to IP-protected
subject matter.
The second rule of thumb is to interpret intellectual property laws in a way that promotes
competition, without questioning the validity of IP rights or the laws that safeguard them.
When competing interpretations of IP law exist, the one that best promotes competition,
safeguards third parties' economic rights, and supports market competitive forces should be
chosen. A definition of intellectual property that takes into account the ever-changing nature
of competition is essential.28
2.3 Problems caused by a lack of competence
Some have speculated that anti-trust or competition measures could be unnecessary if

intellectual property rights models were organised and implemented in a way that would
satisfy both the early and late innovators. To avoid anti-competitive foreclosure, competition
law must examine the use of property rights since legislators have failed to sufficiently
identify and define their boundaries, particularly with respect to more recent technology.
Therefore, competition law will only be necessary if and only if property rights are
inadequately defined, rendering the goals of IP law useless. Intellectual property rights (IPRs)
support innovation by providing an exception to open competition in the form of exclusivity.
For this reason, intellectual property rights (IPRs) in their broadest sense do not encourage
innovation but rather rent-seeking since they expand the area of protection without enough
rationale. It serves no use to create an exception to the rule of free competition. When
intellectual property rights (IPRs) are not clearly defined, petition law steps in to try to fix the
28
Shubha Ghosh, Intellectual Property Rights: the View from Competition Policy, NORTHWESTERN
UNIVERSITY LAW REVIEW COLLOQUY, (2019),
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1156&context=nulr_online
27
problem and keep the competitive dynamics in check. Hence, it is imperative to establish a
precise definition of intellectual property rights that effectively fulfils its intended objective.
2.4 Reason for the middle path.
It is clear from the preceding discussion that it would be oversimplifying things to think about
IP and competition in terms of a conflict between their respective excluding features and the
principle of freedom, or of the comforting prospect of their substantial converging goals. On
the other hand, neither side is totally accurate. You can't expect them to work in perfect
harmony because they each have their own distinct objectives. 29 To assign the direct function
of stimulating innovation to the former or competition to the latter in an analysis of these IP
and competition regulation crossings would be misleading. Both fields work towards
complementary goals; when one succeeds, it might help the other in a roundabout way. The
difficulty lies in formulating regulations that encourage competitive markets to be dynamic
inside intellectual property law (IP law), which includes the substantive laws of copyrights,
patents, trademarks, and trade secrets, and outside IP law, which includes substantive laws of
competition.30
2.5 When Does Each One Effectively Work?

Many people believe that intellectual property (IP) and competition should be kept completely
apart, with IP dealing with the correct assignment and defence of property rights and
competition dealing with the market use and exercise of such rights. This division must
logically be upheld when the law is enforced. We make this case and give many arguments in
favour of it.
Right to use an asset is transferred at creation. To counter this, when intellectual property
rights (IPRs) become a source of market power, competition steps in to regulate their usage.
That the former makes mention of market power is what sets it apart from the latter. 31 Even
intellectual property law controls, to a certain degree, how the assigned property rights are
used; nevertheless, it accomplishes this independently of market power. On the flip side,
competition governs the execution of all property rights, including IPR, which is a source of
29
Mihir Naniwadekar, Intellectual Property Rights and Competition Lawv: Friends or Foes?,SPICY INDIA
BLOGPOST, (2019), http:/spicyipindia.blogspot.com/2009/09/intellectual-property-rights-and.html quoting
HERBERT HoVENKAMP et al., Ip And Antitrust: An Analysis Of Antitrust Principles Applied To Intellectual
Property Law (2009).
30
Shubha Ghosh, supra note 28.
31
Donna M. Gitter, The Conflict in the European Community between Competition Law and Intellectual Propetv
Rights: A Call for Legislative Clarification of the Essential Facilities Doctrine, 40 Am. Bus. L.J. 217, 293
(2003).
28
market power.32 So, the duration and extent of enforcement are two areas where the two
differ.
2.6 The Extracts Of Competition Law

Important purposes of intellectual property rights are not infringed upon by market regulation.
While it does not challenge the practice of excluding third parties from accessing intellectual
property rights (IPR) protected innovations and creations per se, it does challenge the
continuation of anti-competitive behaviour by dominant firms in their dealings with these
firms, which in turn generates more anti-competitive effects. This is the only additional use of
intellectual property rights that goes beyond the antitrust laws' already-granted anti-free riding
function and expands market dominance.
2.7 IP IS SUPPORTED BY COMPETITION LAWS

Intellectual property laws are distinct from the norm that generally encourages open
competition. The purpose of IP protection is to ensure that the goals are met and nothing
more. Competitors can step in and limit things when intellectual property fails to do so.
Antitrust authorities do not see intellectual property rights negatively. This safeguard prevents
the rights from serving their intended purpose when the owner of intellectual property goes
beyond what is required to preserve the work of innovators from imitators and the integrity of
the company's name and image. The imperative to prevent free-riding outweighs the
competitive constraints caused by the contractual exercise of intellectual property rights,
which can lead to such an occurrence. Furthermore, this might occur if intellectual property
rights give rise to a level of market dominance that justifies the compulsory licencing of the
right to an outside party.
Exercising the right in question could have unintended consequences that surpass its original
intent, rendering IP law powerless to prevent them. Given its ability to address the fallout
from property rights enforcement, competition law enters the picture here. So, when IP law is
unable to guarantee the same, competition law steps in to preserve the end purpose.
There should be no confusion between intellectual property and competition in this case.
Keeping their operations separate from one another, with regard to of when they become
32
Pierre Regibeau and Katharine Rockett, The Relationship Between Intellectual Property Law And Competition
Law: An Economic Approach ,In The Interfacebetween Intellectual Property Rights & Competition
Policy,RESEARCH GATE, (2007),
https://www.researchgate.net/publication/5020030_The_Relationship_Between_Intellectual_Property_Law_and
_Competition_Law_An_Economic_Approach
29
operative and under what circumstances, guarantees both the system's effectiveness and the
protection of the purposes.
2.8 The Difference Between Legal and Economic Monopoly

The government's competition regulators don't have to become involved with every IP use.
There is no guarantee that an economic monopoly will follow a legal monopoly. Dominance
in the market cannot be achieved just by possessing intellectual property. The exercise of
intellectual property rights alone does not, therefore, constitute a dominance abuse. 33 Also, it's
not illegal to gain monopoly power in a lawful way.
Prohibiting anti-competitive behaviour, rather than monopolies, is the primary objective of

competition law. It views the formation of an economic monopoly through R&D and the
subsequent protection of intellectual property rights as perfectly legal and justifiable
behaviour, similar to a meritocratic market.34 It acknowledges the right to prohibit copying
regardless of the consequences for others. The pricing of intellectual property rights (IPRs) is
permissible so long as dominant enterprises make a reasonable profit. After considering the
aforementioned factors, the uses that are governed by competition law correspond to those
that are deemed not to be legal, or unjustified activity.
2.9 IP vs. Other Competitors: Competition Law Thresholds

Intellectual property law creates a space for competition law's rights before beginning its
assessment. The purpose of establishing such a threshold is to avoid competition from
encroaching on IP territory. This can cause the firm's IP exercise to be treated favourably
under competition policy. After these tests are complete, though, competition law doesn't
need to distinguish intellectual property from other forms of property rights any more.
Whatever the case may be for the alleged significance of innovation or the information's
status as a public good, competition authorities are not required to regard IP monopoly power
any differently. The consideration of these factors has previously been made in the process of
granting intellectual property rights.35
33
Steve Anderman And Hedvig Schmidt, In The Interface Between Intellectual Property Rightes & Competition
Policy, SSRN, (2007).
34
Guillermo Marshalla & Alvaro Parra, Innovation and Competition: The Role of the Product Market,
INTERNATIONAL JOURNAL OF INDUSTRIAL ORGANIZATION, 221 (2019).
35
Pierre Regibeau and Katharine Rockett, supranote 32, 505.
30
2.10 Adherence vs. Policy in Competition Law
Thus, the policymakers have previously considered and included the trade-off in IP efficiency
into the construction of IP legislation. That is why, according to competition law, it is crucial
that competition authorities not consider such a trade-off again when making specific
decisions.36
There should be a clear delineation between the permissible preferences of competition policy
and those of competition authorities or the court with jurisdiction over petition matters; the
latter should not be allowed to favour petition matters according to the doctrine of separation
between IP and competition. Numerous monopoly power sources must be treated equally.
The domain of competition law is only entered if market dominance and power have been
proven. The purpose of anti-monopoly legislation is to curb monopolistic practices. There
may be deliberate variations in the way dominance is determined and how it is abused in this
scenario because of the usage of intellectual property rights, as mentioned before. Having said
that, after the decision is made, the involvement of competition law including the treatment of
abuse of dominance—remains unrelated to the origin, further emphasising its autonomy from
IP law.
2.11 Analysing Mergers via Competition in the Context of Intellectual Property

Markets may see less competition following the formation of the new firm; thus, competitive
authorities take this into account when assessing a merger. It is not enough to look at the sales
figures of the merging companies; productive capacity is equally important, as it shows
potential market shares, and the decision is about how the merger will affect market shares.
The test of market dominance through competitive means is embodied in this principle. The
origin of market power is, as mentioned before, unimportant when thinking about
competition. That is why it is important to look at the merging businesses' intellectual
property while analysing a merger. Examining the current inventory of intellectual assets of
the merging firms (including those not licenced to other parties) would likewise be
substantial, but more difficult to quantify, in comparison to the actual sales of IP by the
parties. Although there have been cases where forced licences were required as a condition of
merger clearance and where the acquisition of rival technology was limited, such a
comprehensive review of the IP-related components of a merger is rare, according to
36
Pierre Regibeau and Katharine Rockett, supranote 32, 505.
31
experience. Some have speculated that if the combined IP wealth of merging businesses is
likely to weaken the market, then some of their IPRs may have to be divested.
32
CHAPTER 3: THE REGULATORY, LEGAL, AND INSTITUTIONAL
FRAMEWORK WHICH GOVERNS THE COMPETITION LAW AND
INTELLECTUAL PROPERTY IN INDIA
3.1 Legislative Evolution

The High-Level Committee Report on Competition Policy and Law acknowledges that all
types of Intellectual Property Rights (IPR) carry the potential to present challenges within the
realm of Competition Policy and Law. While IPR grants extensive rights to holders for
engaging in productive or commercial activities, it emphasizes that these rights should not
extend to the exertion of restrictive or monopolistic power. Although the report recognizes the
legitimate purpose of IPR in preventing unauthorized use of inventions, it underscores the
necessity to address and prevent any anti-competitive conduct that may arise from the
exercise of these rights. As we examine the treatment of IPRs in accordance with the
“Monopolies and Restrictive Trade Practices Act of 1969” (the "MRTP Act"). In addition, we
analyse the Raghavan Committee's perspective on the convergence of the intellectual property
and competition frameworks. The committee was tasked with formulating the current
structure of competition law.
3.1.1 MRTP Act of 1969.
Prior to the Competition Act of 2002 went into effect in India, all antitrust disputes were
governed by the MRTP Act. The primary aim of the MRTP Act had been to regulate
monopolistic practices and mitigate trade restrictions within the market. It was presupposed
that the existence of intellectual property rights (IPRs) resulted in the formation of
monopolies, and as these monopolies were produced through legal processes, IPRs should not
be held liable for the enforcement of competition law.
In contrast to the Competition Act of 2002, the MRTP Act made no mention of a wide range
of IPR. However, the document solely alluded to patents in section 15. The provision
safeguarded the entitlement of individuals who possess patents registered in India in order to
prevent any form of infringement upon said rights. Therefore, notwithstanding the potential
for monstrous and restrictive conduct, if the aforementioned prohibition served to safeguard
an individual's rights as stipulated in the Patents Act, 1970 (hereinafter referred to as the
"Patents Act"), no order could be issued under the MRTP Act obstructing a patent holder
from exercising said rights. Notwithstanding the explicit mention of patents in general, the
Monopolies and Restrictive Trade Practices Commission ('MRTPC') never encountered a
circumstance in which it would have been obligated to render a decision regarding the impact
33
of monopolistic and restrictive conduct on the prevention of patent infringement and
monopolistic practices. The regulation of abuse resulting from the exercise of other
intellectual property rights was outlined in section 36A of the MRTP Act.
In the “Vallal Perumanv. Godfrey Phillips case 37”, the Monopolies and Restrictive Trade
Practices Commission ('MRTP Commission') determined that provisions of the MRTP Act
could not be invoked so long as an individual possesses a valid IPR and uses it in compliance
with the terms and conditions under which it was granted. However, if the right holder
misappropriates one's rights through "manipulation, distortion, contrivances and
embellishments, etc., so as to mislead or confuse the consumers, he (the right holder) would
be exposing himself to an action under clause (7) of section 36A of indulging in unfair trade
practices." Consequently, the MRTP Commission determined that instances in which the
application of IPRs in accordance with the applicable IP Statute has led to an abuse would
render the provisions of the MRTP Act enforceable. There was no opinion regarding the
character and scope of abuse necessitating intervention by the MRTP Commission.
Furthermore, the court ruled in the “Manju Bharadwaj v. Zed Telefilms Ltd. 38” case that the
interaction between intellectual property rights (IPRs) and anti-competitive practices is
restricted to IPR misuse that leads to monopolistic or discriminatory trade practices. By virtue
of section 36A(1) of the MRP Act, the case established that the MRTP Commission was
given authority over all disputes involving the improper exercise of IPR that leads to
discriminatory business practices, excluding patents.
The MRTP Act failed to adequately regulate the intersection of intellectual property law and
competition law by defining anticompetitive conduct exclusively in terms of the abuse of
rights as defined in the applicable IP law statute, and by establishing distinct thresholds of
misuse for IPRs. Furthermore, India's accession to the General Agreement on Trade and
Tariffs ('GATT') and Trade Related Aspects of Intellectual Property Rights ('TRIPS') of the
World Trade Organisation necessitated a comprehensive revision of competition and IP
legislation to align with global benchmarks. Subsequently, it was noted that the MRTP Act
failed to sufficiently regulate the convergence of intellectual property and competition in
India.
37
Vallal Peruman v. Godfrey Phillips (India) Ltd., 1994 SCC OnLine MRTPC 24.
38
Manju Bharadwaj v. Zee Telefilms Ltd., 1996 SCC OnLine MRTPC 12.
34
3.1.2 Suggestions of the Raghavan Committee
In 1999, in response to the obsolescence of the MRTP Act and the liberalisation of the
economy, a High Level Committee on Competition Policy and Competition Law was
established to determine the future applicability of competition law in India. The committee
was chaired by Mr. S.V.S. Raghavan. In addition to its primary recommendation supporting
the repeal of the MRTP Act, the Raghavan Committee recognised the necessity of
restructuring competition law in accordance with globally recognised principles, while also
considering nuanced facets of the matter. As competition law and economics operate, the
Raghavan Committee Report of 2000 noted that IPRs should not be entirely exempt from the
application of competition law.
The fact that IP law grants right holders exclusive rights but prohibits others from exercising
these rights may give rise to complications in competition law and policy. Even further, the
report stipulated that the operation of IPRs should not be confused with their mere existence.
If the former causes a decline in the public or customer interest, competition law must take
precedence over intellectual property rights. The Report explicitly clarified, by recognising
this distinction, that competition law involvement is justified when a specific exercise of
intellectual property rights may jeopardise the interests of consumers or the public.
Additionally, it was suggested that competition law of India be revised to incorporate this
conflict and enhance competition as a whole. Thus, the Report acknowledged the relationship
between IPR and competition law and served as the foundation for the forthcoming
competition legislation's IPR exemption39.
3.2 Scope of Section 3 & 4 Competition Act, 2002

Prior to 2002, India lacked a comprehensive competition law framework. The 1969 enactment
of the Monopolies and Restrictive Trade Practices Act ("MRTP") constituted the previous
regime. However, an effort was made to substitute MRTP with the Competition Act, which
was implemented in 2002 and revised in 2007. Since this Act's enactment, the relationship
between intellectual property and competition has become the subject of ongoing expert
debate. As a consequence of worldwide advancements, such as the responsibilities outlined in
the TRIPS agreement and the subsequent revisions to India's intellectual property legislation,
the competition regime's capacity to address the market dominance generated by IP has
39
M. M. Sharma, Economics of Exemptions from Competition Law, NATIONAL LAW SCHOOL OF INDIA
REVIEW, (2013), http://docs.manupatra.in/newsline/articles/Upload/0F7253B5-6B78-4151-97D1-
1006FA1DC20D.pdf.
35
assumed significant importance. The Competition Act addresses this matter in multiple
provisions.
It is made abundantly clear in the Statement of Objects and Reasons that the primary purpose
of enacting the Competition Act is to safeguard against practices that hinder competition and
to encourage and maintain competition within the markets.
Initially, IPRs are exempt from Section 3 of the Competition Act, which addresses
anticompetitive agreements. As long as the limitations stipulated in the agreement are
rational, it safeguards the rights of the intellectual property rights (IPR) holder to prevent
violations and maintain these rights. This ensures that competition policy doesn't hinder the
reasonable application of IPRs. It is crucial to achieve a delicate equilibrium between the
implementation of competition law and intellectual property law systems. One possible
approach to achieving this balance is to exclude specific rights granted by intellectual
property laws from the overall enforcement of competition law. An IP law exception that is
limited in scope can effectively balance competition law and stimulate innovation. An
exemption of this nature could effectively govern both the practice itself and the various
consequences that arise from the exploitation of intellectual property rights. Nevertheless, for
the exception to be effective and fulfil its intended function, it is crucial to have a clear and
precise scope.
According to Section 3 of the Competition Act, 2002, all agreements that restrict competition,
whether they are horizontal or vertical, will be considered invalid. Consequently, it prohibits
companies from making agreements that have an appreciable adverse effect on competition
('AAEC') in India. Section 3(5) of the Act provides an exemption for agreements established
by certain individuals from being considered anti-competitive agreements, as long as they
include reasonable limitations. It provides that;
“3(5) Nothing contained in this sections hall restrict-

(i) the right of any person to restrain any infringement of, or to impose reasonable
conditions, as may be necessary for protecting any of his rights which have been or
may be conferred upon him under:
(a) the Copyright Act, 1957 (14 of 1957);
(b) the Patents Act, 1970 (39 of 1970);
36
(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act,
1999 (47 of 1999);
(d) the Geographical Indications of Goods (Registration and Protection) Act,1999 (48
of 1999);
(e) the Designs Act, 2000 (16 of 2000);
(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);”
Therefore, to qualify under this provision, the conditions stated in the agreement have to be
both reasonable and essential to safeguard the rights that are derived from the intellectual
property laws described in section 3(5)(i) of the Act. The provision grants an exemption to
holders of intellectual property rights (IPR) from the application of section 3, but only if the
conditions outlined in their agreements with third parties are both reasonable and necessary
for the purpose of protecting their rights.
Unfortunately, the implementation of this clause is reliant on ambiguity. The act does not
provide a definition for reasonable circumstances, nor does it indicate the extent to which
intellectual property rights (IPRs) can be protected. In the past, the judicial determination of
reasonable conditions has primarily focused on price-related abuses by holders of intellectual
property rights (IPR). However, this approach has not led to the development of
comprehensive analyses that can definitively assess the reasonability of conditions. Although
India is making significant advancements regarding technological marketplaces, research and
development (R&D), and efforts to attract international investment, the management of
matters involving competition law and intellectual property (IP) legislation is still unclear. It
is crucial to clearly define the range of situations to which these regulations apply,
considering both legal and economic viewpoints. Given this situation, it is crucial to examine
and define the limits of the IP law exemption stated in Section 3(5) of the Act, and ascertain
the level of protection it provides in relation to competition law.
It is a well-established legal principle that the Section 3(5) does not merely absolve the CCI of
jurisdiction pertaining to cases involving IPR.40 Although the application of competition law
is not precluded,41 it does possess a precedential impact over other legislation that is currently
in force.42
40
Amir Khan Private Limited v. Union of India, 2010(112) Bom LR3778
41
Section 62, Competition Act, 2002
42
Section 60, Competition Act, 2002
37
The language of Section 4 of the Competition Act, which addresses abuse of dominant
position, is comparable to that of Article 82 of the EC Treaty. It is evident that the violation,
not the mere existence, of a dominant position, is what is legally prohibited. It defines the
term "abuse of dominant position" and provides a list of behaviours that qualify as abusive.
Notable and pertinent to the ongoing discourse is the absence of an exception established for
intellectual property rights (IPRs).
This exemplifies the aforementioned principles expounded upon in the article. In the first
place, competition policy accommodates IPRs and formulates its policies accordingly. The
exception permits the IPR holder to implement reasonable conditions to safeguard the rights
given by the applicable IP law; this prevents the IPRs from being frustrated. Furthermore, the
exception is permitted solely for the purpose of safeguarding the rights in question to the
extent permitted by the intellectual property law; thus, reasonableness is required43.
However, for a variety of factors, this kind of exemption has not been incorporated into
section 4. To begin with, intellectual property rights (IPRs) do not guarantee a market-
dominant position. As previously mentioned, the legal monopoly granted by IPRs does not
guarantee an economic monopoly; the latter is the subject of competition law. Furthermore,
Section 4 does not prohibit the mere presence of market power, even if IPRs do confer a
dominant position; rather, such power must constitute an abuse of dominant position.
Competition policy is amenable to the holder's potential dominance, if any, that could come
from the exercise of IPRs; competition law intervenes only when such dominance constitutes
abuse. The fact that IPRs are the foundation of market dominance is irrelevant in the
occurrence of such abuse. Section 4 therefore does not make an exception for market power
derived from IPR.
It has been stated that the prevention of market power abuse must be balanced with the
protection of the rights of intellectual property holders. Additionally, it elaborates that this
equilibrium can be achieved by distinguishing between the mere presence of a right and its
execution. In the course of exercising one's rights, if an oppressive practice that harms
competition is observed, it is necessary to challenge it under competition law. As a result,
IPRs have been safeguarded to an extent that is reasonable pursuant to Section 3. Therefore,
unreasonable terms or conditions in a contract will not be protected. Conversely, a company
43
Nikita Gupta and Gitanjali Shankar, “Intellectual Property and Competition Law: Divergence, Convergence
and Independence,” NUJS LAW REVIEW, Vol.4, (2011),
http://nujslawreview.org/wp-content/uploads/2016/12/gitanjali.pdf
38
that holds a dominant position and thus is safeguarded by section 4 does not possess
immunity for its IPRs.
3.3 Competition law and IPR

In India, the case law concerning the actual problems of the intersection of intellectual
property rights and competition law is still in its early stages. Starting in the latter half of
2013, the CCI has issued conclusive opinions that clarify the connection between competition
and intellectual property rights (IPR) and outline the circumstances under which the articles of
the Competition Act, 2002 might be considered infringed. The following sections of this note
cover the most important CCI rulings:
 IPR-related horizontal and vertical agreements

 Protecting intellectual property rights against abuse of dominance.
 Licence agreement terms and the establishment of royalty rates.
3.3.1 Agreements pertaining to Intellectual Property Rights (IPRs) in both horizontal

and vertical orientations.
The case of “M/s HT Media Limited v. M/s Super Cassettes Industries Limited 44” involved
the Competition Commission of India (CCI) examining the pricing and licencing terms for
FM radio stations to broadcast copyrighted music owned by music publishers. In that case, the
CCI determined that the practice of mandating private FM radio stations to make contractual
payments in the form of a minimum guarantee (referred to as Minimum Commitment
Charges) is anti-competitive since it prevents other competitors from gaining a significant
portion of the market. CCI's rationale was based on the assumption that the private radio
station, being obligated by contract to provide a minimum guarantee payment to music
creators/producers, is inclined to broadcast the quantity of music for which they have already
paid a predetermined price. This would obviously lead to other competitors in the music
industry being unable to compete and being excluded from airing their songs on this
predetermined play-out platform, of which 30-50% was already reserved.
In the latest Automobiles case45, the CCI had another opportunity to provide further
explanation and implementation of Section 3(5). The issue involved the anti-competitive
44
M/s HT Media Limited v. M/s Super Cassettes Industries Limited, Case No. 40 of 2011.
45
Shri Shamsher Kataria v. Ors., Case No. 03/2011, (Automobiles Decision)
39
activities of car manufacturers regarding the sale of their spare parts, as well as the provision
of after-sale automobile maintenance services. The CCI ruling criticised and admonished the
vehicle makers for engaging in these tactics. Despite being subject to appeal and revision, the
ruling of the CCI included the following clarifications:
3.3.2 Extent of Section 3(5)

i. The Competition Commission of India also explained that the intellectual property
rights (IPR) must have been granted to the holder before the exemption is used.
CCI stated that either protection should have been awarded or a process should
have been launched to grant such protection under the applicable intellectual
property rights (IPR) laws in India.46
ii. ii. The CCI’s order does not specifically discuss the treatment of ‘trade secrets’
under the Competition Act, 2002. The Director General’s Report highlighted that
the absence of any reference to “trade secret” in Section 3(5) implies that it should
not be granted protection. However, the vehicle manufacturers argued that trade
secrets should be safeguarded based on well-established principles of common
law.47 The interpretation of this aspect of law in India is still uncertain, particularly
due to the protection of rights granted by specific acts under Section 3(5) of the
Act. Trade secrets protections in India is not regulated by any separate law, which
means it is not automatically covered by Section 3(5) of the Act. However, it can
be argued that even beyond the scope of Section 3(5), the presence of ‘trade
secrets’ and their safeguarding could be a significant factor in evaluating
‘appreciable adverse effect on competition’, particularly considering that the
Supreme Court has acknowledged the need for reasonable protection against the
misuse of trade secrets.
iii. The CCI stressed the importance of providing adequate documented evidence to
effectively prove the granting of relevant intellectual property rights in India. 48 For
instance, in this situation, automobile manufacturers were required to furnish
documentation to substantiate their assertion. This documentation included
registration/application information of their designs, patents, and how they relate
to specific spare parts. This was necessary in order for them to be eligible for
protection under section 3(5).49
46
Paragraph 20.6.16, Automobiles Decision
47
Paragraphs 3.9.30 & 18.27, Automobiles Decision
48
Paragraph 20.6.16, Automobiles Decision
49
Niranjan Shanker v. Century Spinning & Manufacturing Co., (1967) 2 SCR 378
40
3.3.3 'Essential for safeguarding'
i. The CCI has established a highly stringent criterion for determining what is deemed
'essential' in safeguarding intellectual property rights (IPRs). The CCI stated that the sale of
replacement parts, which are already finished products, does not automatically undermine the
intellectual property rights held by automotive makers in those items. According to the CCI,
automobile manufacturers have the ability to legally safeguard their intellectual property
rights (IPR) from these dealers while yet allowing them to market their products. 50
3.3.4 The factor of public welfare.

The term 'public good factor' refers to a component or aspect that is beneficial to the general
public. According to the CCI directive, it is not permissible to limit accessibility to spare parts
and diagnostic instruments in order to prioritise the overall benefit of the public. The CCI
considered the fact that after purchasing a vehicle, there is a certain expected requirement for
spare parts and maintenance. Some may view this as similar to the application of the essential
facilities doctrine in the European Union. According to EU legislation, if a company refuses
to allow other parties to utilise important facilities, it may be considered as abusing its
dominating position, which goes against Article 82 (now 102 of the EC Treaty). An 'essential
facility' might take the shape of several things, such as raw materials, intellectual property
rights (IPR), services, information, infrastructure, access to a physical location,
communications networks, or software interfaces.51
Hence, corporations should exercise caution in restricting access to vital commodities, as even
intellectual property rights (IPR) protection may not provide complete protection if a
Competition Commission of India (CCI) probe is launched.
3.4 Agreements on the granting of licences

Licencing is often regarded as pro-competitive since it allows the licensee to merge
complementary sources of production, lower transaction and production expenses, and
mitigate the possibility of others taking advantage without contributing. Horizontal licences
can potentially give rise to competition problems, as they may be used by parties to hide
collusive activity, such as market segmentation.
50
Paragraph 20.6.21, Automobiles Decision.
51
Lang, J.,The Application of the Essential Facility Doctrine to Intellectual Property Rights under European
Competition Law in Antitrust, Patents and Copyrights, EU and US Perspectives,RePec, (2005),
https://ideas.repec.org/h/elg/eechap/4008_3.html.
41
The Licencing guidelines issued in the US 52 state that restrictions on the use of licenced
technology in a licencing agreement (excluding mergers) are regarded to be within the
antitrust "safety zone" if the following conditions are met:
i. The combined market share of the licensor and licensee does not exceed 20%; and
ii. The specific restraint in question is not inherently anticompetitive.
The aforementioned "safety zone" is not an absolute rule; instead, it offers a level of
assurance to market participants that, in such circumstances, unless there are exceptional
conditions, restrictions on the use of licenced technology will not be contested. Furthermore,
it should be noted that licence agreements that fall outside of this "safety zone" may still be
seen as pro-competitive based on factual evidence. The European Union has attained
comparable outcomes through the implementation of its Technology Transfer Block
Exemption.
The Indian legislation does not include any precise standards established by the CCI regarding
technology licencing, and there aren't any explicit "safety zones" defined. Nevertheless, the
organisation and tone of Section 3 of the Act clearly indicate a two-fold approach, with the
duality being in how the burden of evidence is assigned. Under some circumstances, the law
assumes that the agreement is harmful to competition, and it is the responsibility of the parties
involved to demonstrate otherwise. In certain cases, the responsibility is on the authorities,
such as the Director-General (DG) and the CCI, to demonstrate how the arrangement is
anticompetitive. Furthermore, according to Section 3(5) of the Act, any "reasonable
conditions... necessary for protecting" intellectual property rights or conditions aimed at
preventing infringement shall not be subject to Section 3. The clear exclusion stated in
Section 3 sets apart the Indian stance.
3.4.1 Potential Licencing Challenges Related to Competition

The subsequent licencing practices serve as an example of a series of circumstances that are
probable to give rise to concerns in the context of competition law:
1. Patent pooling is a practice in which companies operating in the manufacturing sector
combine their patents, agree to forgo granting licences to third parties, and establish quotas or
prices in the process.
2. A tie-in agreement in which the acquisition of specific products by the licensee may be
obligatory from the patent holder, thereby preventing other producers from accessing those
opportunities.
52
The Department of Commerce and the Federal Trade Commission, Antitrust Guidelines for the Licensing of
Intellectual Property, (1995), http://www.justice.gov/atr/public/guidelines/0558.htm.
42
3. Agreement stipulating that royalties shall be payable not only on the subject matter of the
patent but also on unpatented know-how thereafter, royalty payments shall continue even after
the patent has expired.
4. Clause prohibiting the use of rival technology by a licensee or restricting competition in
R&D.
5. Convincing a licensee not to contest the legitimacy of the IPR in question
6. stipulating that the licensee must return to the licensor any acquired know-how or IPR and
refrain from granting licences to third parties.
7. Setting the selling price for the licensee.
8. Licences that demand payment in accordance with the total sales, irrespective of the
utilisation of the licenced intellectual property rights
9. Limiting the licensee's access to specific regions or categories
10. Compelling the licensee to obtain multiple intellectual property licences, even if the
licensee does not require all of them.
11. Enforcing quality control requirements on the licenced patented product that exceed what
is required to ensure the efficacy of the licenced patent.
12. Limiting the licensee's ability to distribute the licenced know-how's product to individuals
not explicitly authorised by the licensor.
13. Demanding that the licensee utilise the trademark
14. Licensor indemnification for costs and litigation incurred in infringement proceedings
15. Strictly regulating the licensee's operations. A licensee may be subject to a restriction on
the field of use of a drug, for instance, if it is required that the drug be administered
exclusively to humans and not to animals, despite the fact that it is capable of being utilised
for both purposes.
16. Restricting the licensee's utmost permitted use of the patented invention
17. Requiring the licensee to utilise or employ personnel designated by the licensor
18. Cross-licensing, which occurs when two or more parties exchange intellectual property
rights, applies when the licenced technologies are substitutes as opposed to complementary
ones.
The CCI will either presume that the restraints in question are anti-competitive or conduct an
investigation to determine whether they have a significant negative impact on competition in
India, contingent on their nature.
43
3.4.2 Indian Legal System's Approach to Licencing Standard Essential Patents
In 2013, the Competition Commission of India (CCI) examined the validity of the provisions
in a licence agreement regarding Standard Essential Patents (SEPs) and the establishment of
royalty rates for these SEPs. It is important to note that although SEP (Standard Essential
Patent) offers significant advantages, it is susceptible to the misuse of market dominance by
the holder of the SEP. CCI found that the proposed licence terms in two cases against the
same licensor were prima facie unfair and discriminatory.53 The main ramifications of these
cases are:
i. In a licence agreement that encompasses Standard Essential Patents (SEPs), the party
granting the licence is prohibited from imposing varying royalty rates or providing various
commercial conditions to licensees within the same category. CCI strongly criticised the Non-
disclosure agreement that the licensor enforced on the licensee, preventing the licensee from
examining the unfairness of the licence terms compared to other alternative licences. 54
ii. Ericsson's royalty rates were not based on the patented product itself, as the technology was
only included in the chipset. However, Ericsson calculated its royalty fees based on the retail
price of the entire mobile. Thus, although the technology remains constant, the royalty
amount may differ for two manufacturers depending on the pricing of their cell phones.
Therefore, the increase in the royalty paid to the patent holder did not correspond to any
contribution made by the licensee to the product. The practice of imposing two different
licence fees per unit mobile for the usage of the identical technology was deemed
discriminatory and indicative of exorbitant pricing compared to high-cost phones.55
iii. Additionally, the licensor is prohibited from imposing restrictions on the licensee that
would prevent them from resolving issues in India (in which both parties conduct business)
and instead require them to do so in a foreign country without proper justification. These
provisions indicate the licensor's misuse of dominance.56
The CCI deemed the conduct to be clearly anticompetitive and instructed the DG to
commence an investigation. Additionally, the orders in this case were issued under Section 4
of the Act, namely the part regarding the abuse of dominant position. Unlike Section 3(5), 57
this provision does not include an exemption for intellectual property rights (IPRs).
53
Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson, Case No. 50/2013, Intex Technologies
(India) Limited v. Telefonaktiebolaget LM Ericsson, CS(OS) No.1045/ 2014
54
Micromax-Ericsson, Paragraph 17
55
Micromax-Ericsson, Paragraph 17
56
Intex-Ericsson, Paragraph 17
57
The CCI has observed that that unlike Section 3(5), there is no exception to section 4(2) of theAct. Therefore, if
an enterprise is found to be dominant pursuant to Explanation (a) to Section 4(2) and indulged in practices
amounting to denial of market access; it is no defense to suggest that such exclusionary conduct is within the
scope of their intellectual property rights
44
Nevertheless, this emphasises that the royalty rates in real licence agreements that encompass
Standard Essential Patents (SEPs) will be evaluated based on comparable criteria.
3.4.3 Denial of Intellectual Property Licence

Discussions on competition concerns in licencing would be incomplete without addressing the
competition matters that arise while not licencing. Ultimately, there is a chance that market
participants may decline to grant licences for their technology, resulting in a significant
negative effect on competition in India. A suitable remedy in this situation would involve
compelling the owner of the technology to grant a licence for its use, similar to a compulsory
licence (CL). If the refusals are limited to decisions made by a single entity, they would be
analysed under Section 4. However, if the refusals involve many companies, often known as a
'collective boycott', the analysis may be conducted under both Sections 3 and 4 of the Act.
The complications in this area arise due to the absence of guidance from the CCI and the
inclusion of this subject matter in specific intellectual property legislations. Under Section 84
of the Indian Patents Act, 1970, the Controller of Patents has the authority to issue a
compulsory licence if, after three years from the grant of a patent, the patented invention fails
to meet the reasonable needs of the public, is not reasonably priced and accessible to the
public, or is not being used in India. In 2012, the Controller of Patents awarded a compulsory
licence to a generic Indian drug maker for Bayer's patent on a cancer drug. This decision was
affirmed on appeal and was based on all three reasons.58
The Copyright Act of 1957 includes comparable protections, albeit with a more limited range.
A compulsory licence can be granted in accordance with Section 31(1)(b) of the Copyrights
Act, 1957. The Copyright Board may issue the order if it determines that the holders of
copyright have unreasonably denied permission for public communication. This rule applies
exclusively to specific categories of copyrighted works and does not encompass all types. In
the 2010 decision of “Music Broadcast Pvt Ltd v. Phonographic Performance Limited”, the
Copyright Board made a highly debated ruling. They granted a compulsory licence to the FM
radio industry for musical works, based on a revenue sharing arrangement. Specifically, each
FM radio station would allocate 2% of their net advertisement earnings to compensate the
music providers.59
58
Natco Pharma v. Bayer Corporation, 2014(60) PTC 277 (BOM).
59
Music Choice India Pvt Ltd v. Phonographic Performance Limited, AIR 2010 (NOC) 1043 (BOM.)
45
Other intellectual property laws do not provide such clear and specific rules. These specific
laws related to intellectual property have clear processes, however there may be problems that
arise from the overlap of these laws. It remains uncertain whether the presence of these
specific mandatory licence systems will implicitly limit the authority of the CCI. It is
important to observe that competition regulators in other countries have given CL
(compulsory licences) based on the competition regulations in their own laws, even when
there are analogous provisions in intellectual property laws. 60 Therefore, one may plausibly
argue for the approval of CL based on the requirements of the Act. While the legal principles
in this area are still developing, the Competition Commission of India (CCI) will undoubtedly
have to deal with these concerns in the near future. It remains to be seen if the CCI will try to
incorporate the factors evaluated by the appropriate IP authorities into the Act, or if it will
choose to disregard such aspects and evaluate the matter based on different criteria.
Additionally, the CCI has the ability to direct such issues to appropriate intellectual property
authorities as outlined in Section 21A of the Competition Act, 2002. Only the passage of time
will yield definitive answers to such inquiries.
There has been some progress with this doctrine in the CCI thus far. Some decisions made by
the CCI seem to support the idea that the "essential facilities doctrine" is applicable under
Section 4 of the Act. However, it appears that these decisions have not thoroughly addressed
the extent to which this doctrine applies. It is not definitively established in the legal field that
the "essential facilities" doctrine is the sole basis on which a refusal to licence intellectual
property would be considered an abuse of dominance.
3.5 Using intellectual property rights as a defence against the abuse of dominance
From a legal standpoint, it is evident that the "safe harbour" provision in Section 3(5) of the
Act specifically applies to the prohibition outlined in Section 3 and practices outlined in
Section 4. The CCI's latest order in the Automobiles decision, mentioned earlier, confirms
this.61 The CCI observed that there is no exemption to section 4(2) of the Act, unlike Section
3(5). Thus, if a company is deemed dominant under Explanation (a) to Section 4(2) as well as
engages in practices that restrict market access, it is not a valid defence to argue that such
exclusionary behaviour falls under its intellectual property rights.62
60
Survey on Compulsory Licenses granted by WIPO Member States to Address Anti-Competitive uses of IPR,
CDIP/4/4 Rev/STUDY/INF/5
61
Shri Shamsher Kataria v. Ors., Case No. 03/2011 (Automobiles Decision)
62
Paragraph 20.5.85, Automobiles Decision(Automobiles Decision)
46
The language employed in the CCI's decision, presently being appealed and reviewed, implies
that the presence of intellectual property rights holds no significance in the examination
conducted under Section 4. However, the CCI's approach raises doubts. If the mere granting
and exercising of rights typically associated with intellectual property rights is deemed as a
'abuse', it would essentially make the granting of such rights meaningless. This undermines
the significance of Section 62 in the Act, which clearly states that the Act should be applied in
combination with other legislations. However, having an intellectual property right does not
exempt one from the requirements outlined in Section 4 of the Act. This undermines the
significance attributed to Section 60 of the Act, which clearly states that the Act will be
applicable regardless of any conflicts with other laws. Both provisions imply the need to
strike a balance between the exercise of intellectual property rights and competitive
behaviour, ensuring that market participants do not have a significant adverse impact on the
competition in India.
3.6 Exorbitant pricing

In a previous case, “M/s HT Media Limited v. M/s Super Cassettes Industries Limited”, the
CCI also addressed the issue of determining whether a licencing price can be considered
'excessive pricing' by the licensor. In that decision, the CCI emphasised the necessity of
conducting a thorough analysis of cost data. The cost of data analysis would encompass the
expenses associated with acquiring a sound recording, such as the royalty paid to the owners
or the recording expenses incurred if the music is created in-house. In addition, acquiring
certain sound recordings can be a complex process, and the resulting music may either be a
success or a failure. It is important to consider such factors when calculating the licensee fee.
Thus, when considering a case for excessive pricing, it is important to consider these factors.
Simply claiming that a licensor charges a higher price than its competitors might not be
enough to support a claim.63
63
M/s HT Media Limited v. M/s Super Cassettes Industries Limited, Case No. 40 of 2011.
47
CHAPTER 4: COMPARATIVE ANALYSIS OF COMPETITION LAW AND
INTELLECTUAL PROPERTY RIGHTS IN THE EUROPEAN UNION, UNITED
KINGDOM, AND UNITED STATES OF AMERICA
4.1 Global Perspective
The connection between intellectual property and competition has been widely acknowledged
in the global context. Since the 1948 Havana Charter for the International Trade Organisation,
there has been a requirement for Members to prevent restraint on competition and collaborate
with the Organisation on such restraints.64 During the 1960s and 1980s, there was a significant
amount of debate surrounding the connection between intellectual property rights (IPRs),
technology transfer, and competition. In 1980, the UNGA passed a resolution known as the
'Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive
Business Practices.' This resolution included regulations aimed at addressing abusive
practices in the realm of IPRs.65
The TRIPS Agreement also includes safeguards in this area, with the guiding principle being
that each country has the authority to determine its own competition policy related to
intellectual property rights. Furthermore, it is crucial to ensure that national competition
policies regarding intellectual property rights align with the principles of IP protection
outlined in the TRIPs Agreement. Thirdly, there is an urge to primarily focus on practices that
limit the spread of safeguarded technologies.66
Members have the right to take action against the misuse of intellectual property rights, as
long as it complies with the provisions of the Agreement. 67 Another option to address the
misuse of patents is through the implementation of compulsory licences. Furthermore, fines
and restraining orders may also be pursued. Members also have the discretion to define and
address unfair practices related to intellectual property in their own state legislations. 68
Member-states have significant discretion under the TRIPS agreement when it comes to
developing and implementing competition laws in the realm of intellectual property.
64
Article46,HavanaCharterforanInternationalTradeOrganisation,1948,http://worldtradelawA.net/mise/
havana.pdf.
65
Frederick M. Abbott, Are the Competition Rules in the WTO TRIPS Agreement Adequate?, RESEARCH
GATE, (2004),
https://www.researchgate.net/publication/5213745_Are_the_Competition_Rules_in_the_WTO_TRIPS_Agreem
ent_Adequate
66
Abir Roy And Jayant Kumar, Competition Law In India, (2008).
67
Article 8.2, TRIPS Agreement.
68
Article 40, TRIPS Agreement.
48
The Anti-Competitive Guidelines for Licencing of Intellectual Property outline three key
principles that support the validity of various intellectual property licencing terms and
agreements.69Firstly, when it comes to anti-trust analysis, intellectual property can be seen as
similar to any other type of property. Secondly, it should not be automatically assumed that
intellectual property rights lead to market power in the context of anti-trust analysis. And
thirdly, intellectual property licencing is usually seen as beneficial for competition, as it
enables companies to bring together different resources that complement each other.
The previous chapters explored the measures taken by competition law and intellectual
property law to establish a harmonious relationship between the two legal systems, with a
particular emphasis on the legal framework in India. This chapter aims to conduct a
comparative study of the measures implemented in other jurisdictions. These jurisdictions
encompass the EU, UK, and USA.70
The United Kingdom (UK), The European Union (EU), and the United States of America
(USA) are among the most advanced jurisdictions in both the law and practice of competition
or antitrust law, as well as intellectual property law. These three major legal systems have
developed extensive frameworks and jurisprudence surrounding the interplay between
competition law and intellectual property rights (IPRs). A comparative study of their
approaches can provide valuable insights and guidance for India on how to navigate the
complex intersection of these two areas of law.
Competition law, also known as antitrust law, aims to maintain andpromotefair competition in
the market by regulating anti-competitive practices, such as monopolies, cartels, and mergers
that may harm consumer welfare. On the other hand, intellectual property law grants
exclusive rights to creators and innovators, enabling them to reap the benefits of their
inventions or creative works for a limited period. While IPRs can foster innovation by
providing incentives, their misuse or excessive exploitation can potentially restrict
competition and harm consumer interests.
This chapter will examine the legal frameworks, jurisprudence, and enforcement practices of
the EU, UK, and USA concerning the interaction between competition law and IPRs. It will
69
US Department of Justice and Federal Trade Commission, Anti-trust Guidelines for the Licensing of
Intellectual Property, (1995) http://Awwjustice.goviatr/public/guidelines/0558.
70
Jay P. Kesan & Gwendolyn G. Ball, "The Economic Importance of Intellectual Property Rights: Understanding
the Interface Between Intellectual Property Law and Antitrust Law" (13 Sup. Ct. Econ. Rev. 135, 2006).
49
highlight the key principles, notable cases, and policy considerations adopted by these
jurisdictions, which can inform India's approach to this critical issue.
4.2 The European Union
The European Union has a well-developed and harmonized competition law regime, primarily
governed by Articles 101 and 102 of the Treaty on the Functioning of the European Union
(TFEU). Article 101 prohibits agreements, decisions, and concerted practices that distort or
restrict competition within the EU internal market, while Article 102 prohibits the abuse of a
dominant market position.Regarding IPRs, the EU has adopted a balanced approach that
recognizes the importance of IPRs for promoting innovation while ensuring that their exercise
does not unduly restrict competition. The exercise of IPRs is subject to the general rules of
competition law, and certain practices related to IPRs, such as, excessive pricing, refusal to
license, or tying, may be considered abusive under Article 102 TFEU71.
4.2.1 Notable Cases and Principles
The Magill TV Guide decision: In this significant legal decision, the European Court of
Justice (ECJ) ruled that when television companies refuse to grant a licence for their
programme listings to a third party that intends to print a comprehensive TV guide, it is
considered an unfair use of their dominant market position, as outlined in Article 102 TFEU.
The European Court of Justice (ECJ) introduced the concept of the "exceptional
circumstances" doctrine. This doctrine permits the mandatory granting of licences for
intellectual property rights (IPRs) in rare situations where the refusal to grant a licence
hinders the development of a new product that has the potential to meet market demand.
The European Commission determined that Microsoft engaged in anticompetitive behaviour

by bundling its Windows Media Player with the Windows operating system and by denying
competitors access to interoperability information. The Commission mandated that Microsoft
separate Windows Media Player from its operating system and provide information on
interoperability in a fair and unbiased manner.
The European Court of Justice (ECJ) confirmed the Commission's ruling that AstraZeneca
had engaged in anti-competitive behaviour by providing false information to patent offices
71
Roger D. Blair & D. Daniel Sokol, "The Rule of Reason and the Goals of Antitrust: An Economic Approach"
(Edward Elgar Publishing 2012).
50
and selectively revoking marketing authorizations. This was done with the intention of
preventing generic competition for its popular medicine Losec.
The ECJ's ruling in the Huawei v. ZTE case clarified the conditions in which the act of
denying a licence for standard-essential patents (SEPs) on fair, reasonable, and non-
discriminatory (FRAND) terms could be considered an abuse of a dominant market position.
The court implemented a series of procedural regulations that both the holder of the Standard
Essential Patent (SEP) and the potential licensee are required to adhere to in order to
guarantee a fair and equitable negotiation process.
4.2.2. Principles and Policy Considerations
The EU's approach to the interaction between competition law and IPRs is guided by the
following principles and policy considerations:
1. Balancing Innovation and Competition: The EU recognizes the importance of IPRs in

promoting innovation but also acknowledges the need to ensure that the exercise of IPRs does
not unduly restrict competition and harm consumer welfare.
2. Case-by-Case Analysis: The assessment of whether a particular practice involving IPRs is

anti-competitive is typically done on a case-by-case basis, considering the specific
circumstances and market conditions.
3. Exceptional Circumstances Doctrine: While the refusal to license IPRs is generally

permitted, the ECJ has established the "exceptional circumstances" doctrine, which allows for
the compulsory licensing of IPRs in exceptional cases where the refusal prevents the
emergence of a new product for which there is potential consumer demand.
4. Interoperability and Essential Facilities: The EU has recognized the importance of

interoperability and has required dominant firms to provide access to essential facilities or
information necessary for interoperability, subject to reasonable and non-discriminatory
terms.
5. Standard-Essential Patents and FRAND Licensing: The EU has provided guidance on the
application of competition law to standard-essential patents (SEPs) and the need for SEP
holders to license their patents on fair, reasonable, and non-discriminatory (FRAND) terms.
51
4.3 The United Kingdom
The United Kingdom has established an independent competition law framework subsequent
to its withdrawal from the European Union. This framework is predominantly regulated by
the Competition Act 1998 and the Enterprise Act 2002. As competition law in the United
Kingdom was primarily derived from that of the European Union during the country's
membership, the two systems are largely consistent. Similar to the EU, the United Kingdom
approaches the interaction between competition law and IPRs. The exercise of intellectual
property rights (IPRs) is regulated by the Competition Act, and specific IPR-related practices
that hinder competition may be deemed anti-competitive.
1.Gaviscon Case: The UK Competition and Markets Authority (CMA) fined the
pharmaceutical company Reckitt Benckiser for abusing its dominant position by withdrawing
the Gaviscon Original product from the market and introducing an alternative product,
Gaviscon Advance, which was patent-protected. The CMA found that this conduct was aimed
at hindering competition and maintaining high prices for the product.
2. Unwired Planet v. Huawei Case: The UK Supreme Court addressed issues related to
standard-essential patents (SEPs) and FRAND licensing. The court provided guidance on the
determination of FRAND royalty rates and the circumstances under which an injunction may
be granted against an unwilling licensee.
3. Alignment with EU Jurisprudence: The UK courts and competition authorities have

generally followed the principles and jurisprudence established by the EU courts and the
European Commission in cases involving the interaction between competition law and IPRs.
4.3.2 Principles and Policy Considerations
The UK's approach to the interaction between competition law and IPRs is guided by the
1. Balancing Innovation and Competition: Similar to the EU, the UK recognizes the
importance of IPRs in promoting innovation but also acknowledges the need to ensure that the
exercise of IPRs does not unduly restrict competition and harm consumer welfare.
52
circumstances and market conditions.
3. Alignment with EU Principles: Given the UK's historical membership in the EU, its
competition law principles and jurisprudence related to IPRs are largely aligned with those of
the EU.
4. Standard-Essential Patents and FRAND Licensing: The UK has addressed issues related to
standard-essential patents (SEPs) and the need for SEP holders to license their patents on fair,
reasonable, and non-discriminatory (FRAND) terms, providing guidance on the determination
of FRAND royalty rates and the circumstances under which an injunction may be granted.
4.4 The United States of America
In the United States, antitrust law is primarily governed by the Sherman Act, the Clayton Act,
and the Federal Trade Commission Act. The U.S. approach to the interaction between
antitrust law and IPRs has evolved over time, with a shift towards a more permissive stance
regarding the exercise of IPRs.72
The U.S. antitrust agencies, the Department of Justice (DOJ) and the Federal Trade
Commission (FTC), have issued guidelines and policy statements that recognize the
importance of IPRs in promoting innovation and generally allow IPR holders to exercise their
rights, subject to certain limitations.
1. Microsoft Case: In a landmark case, the DOJ accused Microsoft of illegally tying its
Internet Explorer web browser to the Windows operating system, thereby harming
competition in the web browser market. The case resulted in a settlement that imposed various
restrictions on Microsoft's conduct and required it to share interoperability information with
third-party software developers.
2. FTC v. Qualcomm Case: The FTC accused Qualcomm, a leading manufacturer of baseband
processors and chipsets for mobile devices, of engaging in anti-competitive practices related
72
Keith N. Hylton, "Antitrust Law: Economic Theory and Common Law Evolution" (Cambridge University Press
2003).
53
to its standard-essential patents (SEPs). The case centred around allegations of excessive
royalty rates, exclusive dealing, and refusal to license SEPs on FRAND terms.
3. eBay v. MercExchange Case: The U.S. Supreme Court established the principle that a
patent holder is not automatically entitled to an injunction against an infringer, even in cases
involving valid patents. The court emphasized the importance of considering the equities and
the public interest in determining whether an injunction should be granted.
4. Antitrust Guidelines for the Licensing of Intellectual Property: The DOJ and FTC have
jointly issued guidelines that provide a framework for analyzing the licensing of IPRs under
antitrust law. The guidelines generally recognize the pro-competitive benefits of IP licensing
and establish certain "safety zones" where licensing practices are unlikely to raise antitrust
concerns.
4.4 2 Principles and Policy Considerations
The U.S. approach to the interaction between antitrust law and IPRs is guided by the
1. Promoting Innovation: The U.S. antitrust agencies recognize the importance of IPRs in
promoting innovation and generally allow IPR holders to exercise their rights, subject to
certain limitations.
2. Balancing Competition and IP Rights: While the U.S. acknowledges the importance of
IPRs, it also recognizes the need to balance the rights of IPR holders with the promotion of
competition and consumer welfare.
3. Rule of Reason Analysis: The assessment of whether a particular practice involving IPRs is
anti-competitive is typically done under the "rule of reason" analysis, which weighs the pro-
competitive and anti-competitive effects of the practice.
4. Standard-Essential Patents and FRAND Licensing: The U.S. has addressed issues related to
standard-essential patents (SEPs) and the need for SEP holders to license their patents on fair,
reasonable, and non-discriminatory (FRAND) terms, with cases like FTC v. Qualcomm
providing guidance on acceptable practices.
54
5. Injunctive Relief and Patent Holdup: The U.S. courts have recognized the potential for
patent holdup and have established principles for determining when injunctive relief is
appropriate in cases involving IPRs, considering the equities and the public interest.
6. Antitrust Guidelines and Safe Harbours: The FTC and DOJ have issued guidelines that
provide a framework for analysing IP licensing practices under antitrust law and establish
certain "safety zones" where licensing practices are unlikely to raise antitrust concerns.
4.5 Implications for India
The comparative study of the EU, UK, and U.S. approaches to the interaction between
competition law and IPRs can provide valuable insights for India's competition law regime.
While each jurisdiction has its unique legal and economic considerations, the following
general principles and lessons can be drawn:
1. Balancing Innovation and Competition: All three jurisdictions recognize the importance of
IPRs in promoting innovation but also acknowledge the need to ensure that the exercise of
IPRs does not unduly restrict competition and harm consumer welfare. India should strive to
strike a similar balance in its competition law framework.

circumstances and market conditions. India's competition authorities should adopt a similar
approach, avoiding rigid rules or bright-line tests.
3. Scrutiny of Certain Practices: Certain practices related to IPRs, such as refusal to license,
excessive pricing, tying, or abuse of standard-essential patents, are subject to scrutiny under
competition law in the studied jurisdictions. India should consider developing clear guidelines
or jurisprudence on the treatment of such practices under its competition law.
4. Interoperability and Essential Facilities: The EU and U.S. have recognized the importance
of interoperability and have required dominant firms to provide access to essential facilities or
information necessary for interoperability, subject to reasonable and non-discriminatory
terms. India may consider adopting similar principles to promote competition and innovation
in the digital economy.
55
5. Standard-Essential Patents and FRAND Licensing: The studied jurisdictions have provided
guidance on the application of competition law to SEPs and the need for SEP holders to
license their patents on fair, reasonable, and non-discriminatory (FRAND) terms. As India
continues to participate in global standard-setting activities, it may benefit from developing a
clear policy or jurisprudence on SEPs and FRAND licensing.
6. Guidance and Enforcement: The EU, UK, and U.S. have issued guidelines, policy
statements, and actively enforced competition law in cases involving IPRs, providing a
framework for businesses and stakeholders to navigate the intersection of competition law and
IPRs. India's competition authorities may consider issuing similar guidance and actively
enforcing competition law in cases involving IPRs to promote transparency and legal
certainty.
7. Tailoring Approach to Local Conditions: While drawing lessons from the studied
jurisdictions, India should also consider its unique economic and legal environment, as well as
its policy priorities, when developing its approach to the interaction/interconnectedness
between competition law and IPRs.
By studying the implementation and enforcement of competition law in these advanced

jurisdictions, India can gain valuable insights and adopt best practices tailored to its national
context. A well-crafted competition law regime that balances innovation and competition can
foster economic growth, promote consumer welfare, and encourage fair and vibrant markets.
56
CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS
This Chapter concludes the paper. It will provide a concise overview of the discussions
covered in the preceding chapters.
The first chapter of this study surveyed the literature on the subject of intellectual property
and competition law. A concise review of the relevant literature was included, with an
emphasis on the study's aims and questions. The second part provided a thorough evaluation
of the aims and purposes of IP and competition laws. It highlighted the complementary nature
of the many branches of law and how they work in practise. The third chapter delves into the
institutional, regulatory, and legal context of our research topic. When it comes to the areas
where intellectual property law and competition law interact, this chapter brought attention to
the lack of enforcement methods and legal procedures. The fourth chapter delves deep into the
topic of competition jurisdictions, including the United States, the European Union, and the
United Kingdom. The objective was to find out if these jurisdictions have something useful to
teach India.
Innovation is undeniably becoming more important. Innovation, creativity, and the spread of
new technologies are the aims of intellectual property law. Protecting economic efficiency
and reducing transaction costs from anti-competitive actions is the primary goal of completion
law. In each scenario, the primary focus should be on maximising dynamic efficiency,
economic efficiency, and consumer welfare. Market rivals must take innovators' right to
private property into account if they want to keep the market growing. Though a review of
relevant statutes and court decisions shows that competition law lacks the analytical tools to
determine the implications for intellectual property rights protection, the two bodies of law
nevertheless work towards the same overarching goals: fostering innovation and ensuring
society's well-being. When it comes to mergers, licencing agreements, and controlling market
dominance, every country needs an IP-specific competition policy. Rather than being justified
from a short-term perspective, long-term efficiency should be emphasised. The goals of
intellectual property law and competition law are unified and complementary. Only in cases
of monopolistic misuse does competition law step in. Tying, grant backs, and pooling are just
a few examples of intellectual property licencing techniques that aren't always restricted.
By comprehending the function of intellectual property rights and the significance of

intellectual property licencing, methods for intellectual property licencing and patent pooling
undergo far-reaching changes. The "rule of reason" method has superseded the stringent
regulations of the "Nine no Nos" period. The demand of emerging economies is driving new
57
methods of patent enforcement. Enforcement of competition laws has been bolstered in the
places being considered, namely the markets of the United States and the European Union.
For competition law to effectively combat intellectual property (IP) abuses, India must move
past its current normative phase.
The protection of intellectual property rights is balanced out by competition policy. The Trade
Related Intellectual Property Rights (TRIPS) Agreement establishes minimum standards for
the protection of IP and the prohibition of anti-competitive licencing practices. To avoid the
possible misuse of intellectual property rights by their owners, the Agreement specifies in
Article 8(2) that certain actions may be required. It is acknowledged in Article 40(1) that
licencing practices that limit competition can hinder technology transfer and have a negative
impact on trade. Members can take action to prohibit or regulate anti-competitive conduct that
constitute an abuse of intellectual property rights (IPRs) as stated in Article 40(2). Coercive
package licencing, exclusive grant backs, and agreement provisions that forbid challenges to
their validity are all examples of such activities. A forced licence can be issued for a practice
that has been found to be anti-competitive by judicial or administrative process, as stated
plainly in Article 31(k). However, there were still several problems that the TRIPs did not
resolve, such as the criteria used to evaluate whether abuses were actionable. To fully
implement the Act and adapt to the evolving demands of the Indian business landscape and
economy, India's competition law was revised in 2007 after its initial 2002 enactment. An
investigation and subsequent orders may be taken by the Competition Commission of India in
the event that a dominant position is established in accordance with Section 27(g).
Nevertheless, the Commission and the Appellate Tribunal Specially Constituted for
competition matters have not yet dealt with licencing and other intellectual property issues as
a result of the 2007 Act modification. When examining the competition laws of the United
States, the European Union, and India, it becomes clear that Indian law has adopted the
European model. The Sherman Act, Section 1, and the Rome Treaty, Article 85 both forbid
agreements that restrict trade. U.S. law views cartels involved in price fixing as criminal
enterprises, and large sums of money were paid out as damages. There are a lot of loopholes
in EU law, and the enforcement is lax. A 40% share of the market is considered to be
dominant under EU legislation.73
In conclusion, The intricacies of the regulations in various countries have varied repercussions
and approaches. In the United States, numerous instances of dominant market position abuse
73
Roger D. Blair & D. Daniel Sokol, "The Rule of Reason and the Goals of Antitrust: An Economic Approach"
(Edward Elgar Publishing 2012),
58
and failure to disclose patents to standard setting organisations have been reported. Stricter
measures should be implemented to address the issue of monopolisation in key markets and
the abuse of dominant positions, similar to the approach taken by the European Union in the
Microsoft case. The IP licencing practices should have had unambiguous guidelines, similar
to those in place in both the United States and the European Union. India should also establish
comprehensive rules to enhance the management of its vast market economy, which is the
largest in the world. It is necessary to emphasise the expiration of intellectual property rights
in national legislation in order to allow for the importation of innovations without infringing
on patent laws. It is advisable to adopt interventionist measures such as IMS Health and
Magill, rather than following the US approach seen in the Trinko case about refusal to deal.
The enforcement strategies must be closely aligned with the economic policies and
developmental objectives of developing nations. The effectiveness of implementing US and
EU policies in India may vary depending on the specific economic conditions, and a
wholesale copying of these policies is unlikely to yield optimal results. The ongoing emphasis
on protecting intellectual property (IP) in the pharmaceutical industry has significant
consequences for developing nations such as India and other nations that are least developed
in their efforts to combat diseases like HIV/AIDS. Implementing a strict enforcement of
intellectual property rights and addressing any potential issues with competition law may
result in higher costs for transactions and a decrease in overall societal welfare. It is crucial to
acknowledge that over 100 countries have implemented competition laws, while in total, 159
countries have established intellectual property (IP) laws. Both regulatory bodies must play a
part in shaping policies related to IP and competition laws, particularly in emerging nations.
The rules established by the United States and European Union for addressing intellectual
property (IP) and competition matters can serve as a foundation, in light of the TRIPs
Agreement, for addressing anti-competitive conduct in technology licencing and transfer.
Additional direction is needed regarding the legal structure, taking into account the existing
legal decisions in the United States and the European Union, which can be beneficial in
developing intellectual property and competition policies in countries such as India.
The Indian government has established sectoral regulators and a system of patent offices to
handle all patent-related matters. While the competition authorities in the United States and
the European Union handle all matters pertaining to competition, regardless of the sector, the
Indian statute is still vague. In matters of sectoral competition, the competition commission
must preside. Globally, consumer welfare is the goal of competition law. When such
transactions impact the local market, the competition commissions in three jurisdictions—the
59
US, the EU, and India—are acknowledged as having extra territorial authority. When major
deals involving domestic or foreign corporations take place, each jurisdiction has its own
merger notice method. Concerning the disagreement between intellectual property and the
competition act, the latter has not yet reached the level of creating case law on the matter.
There are also challenges that the Commission has not yet faced in putting the provisions into
action.
As India strives to become a worldwide innovation hub and a strong economic powerhouse,
the harmonisation of competition law and intellectual property rights (IPRs) becomes
increasingly important. The complicated interaction of various legal frameworks is critical in
encouraging invention, propelling technological development, and safeguarding the ideals of
fair competition and consumer welfare.
In our thorough investigation, we delved into India's legal and regulatory framework,
analysed major legal precedents, and gained useful ideas from creative techniques used by
global leaders such as the European Union, the United Kingdom, and the United States of
America. Now is the time to distil these data, draw significant implications, and provide
practical suggestions to lead India's attempts to achieve a harmonic balance between
competition legislation and intellectual property rights (IPRs).
5.1 Summary of Findings

1. Development of India's Legal and Regulatory Framework: India has a strong legal structure
that includes the Competition Act of 2002 and several intellectual property legislation such as
the Patents Act of 1970, the Trade Marks Act of 1999, the Copyright Act of 1957, and the
Designs Act of 2000. However, our findings indicate that more clarity and alignment are
required to successfully manage possible conflicts and overlaps between these categories.
2. The Significance of Judicial Precedents: Indian courts have played an important role in
defining legal concepts at the confluence of competition law and intellectual property rights
(IPRs). Landmark cases like Aamir Khan Productions, Natco Pharma, Monsanto Technology,
and Bharti Airtel have offered useful guidance on dispute resolution and finding a balance
between stimulating innovation and guaranteeing fair competition, all while keeping the
public interest in mind.
3. Institutional Framework and Enforcement Mechanisms: Regulatory authorities such as the

Competition Commission of India (CCI) and the Intellectual Property Appellate Board
60
(IPAB) are responsible for enforcing competition legislation and resolving IPR disputes. To
boost enforcement procedures, better coordination, clearer guidelines, and greater
participation with industry stakeholders are required.
4. Insights from International Models: Examining global pioneers provides significant

insights about effective ways for navigating the junction of competition and intellectual
property rights. Jurisdictions such as the European Union, the United Kingdom, and the
United States have created strong legal frameworks and enforcement systems that might serve
as models for India.
Key conclusions
1. Synergistic Relationship Between Competition Law and Intellectual Property Rights:

Despite apparent appearances of conflict, competition law and intellectual property rights
(IPRs) are fundamentally compatible. Both seek to promote innovation, stimulate economic
growth, and preserve consumer welfare, albeit through different means. While IPRs
encourage innovation via exclusivity, competition law assures that this exclusivity does not
result in anti-competitive behaviour.
2. The Importance of a Balanced strategy: Managing the interplay between competition law
and IPRs necessitates a sophisticated and balanced strategy that protects IPR holders' lawful
rights while addressing any anti-competitive implications. A one-size-fits-all strategy is
insufficient for successfully navigating the nuances of this relationship.
3. Consideration of Public Interest: In the junction of competition law and intellectual

property rights, public interest concerns are critical, particularly in areas such as healthcare
and agriculture. Balancing access to vital products and services with intellectual property
rights protection necessitates careful consideration and targeted actions such as compulsory
licencing and broader competition law enforcement.
4. Addressing Emerging difficulties: As technology and business models evolve, new

difficulties arise, such as patent thickets and standard-essential patents. Proactive actions are
required to solve these issues and maintain fair competition and innovation in the digital era.
61
5.2 Recommendations
Based on our results and conclusions, we suggest the following recommendations to guide
India's approach for striking a healthy balance between competition legislation and
intellectual property rights (IPRs):
1. Legal Reforms and Harmonisation: Conduct a complete assessment of current legislation to

identify opportunities for clarity and alignment between competition law and intellectual
property rights, therefore increasing legal certainty and predictability.
2. Increase Institutional Frameworks: Improve coordination among regulatory agencies,

provide clear standards for specific IPR circumstances, and cooperate with industry
stakeholders to increase enforcement procedures.
3. Advocate for Balanced Jurisprudence: Encourage Indian courts to use global legal
precedents to establish a considered and equitable approach to addressing disputes between
competition law and intellectual property rights.
4. Address Emerging difficulties: Utilise targeted measures and enforcement techniques to

address emerging difficulties such as complex patent portfolios and the impact of digital
platforms on competition and intellectual property rights.
5. Promote Global Cooperation: Actively participate in international forums to exchange best

practices and coordinate efforts to address global difficulties in managing the convergence of
competition law and intellectual property rights.
6. Increase Awareness and Advocacy: Launch comprehensive awareness campaigns to

educate stakeholders on the necessity of balancing innovative incentives with fair
competition, as well as cultivating a regulatory compliance culture.
7. Promote Industry Engagement: Encourage collaboration among policymakers, regulatory

bodies, and industry stakeholders to identify and remove barriers at the nexus of competition
law and intellectual property rights, therefore fostering evidence-based policymaking.
8. Invest in Capacity Building: Improve the knowledge and capabilities of regulatory

agencies, judicial institutions, and legal professionals through targeted training programmes
on competition law and intellectual property rights.
62
9. Implement Continuous Monitoring: Create a strong mechanism for monitoring and
reviewing the legislative and regulatory frameworks that regulate competition law and IPRs,
ensuring that they stay responsive to changing circumstances.
63
BIBLIOGRAPHY
Articles Referred
Arutyun Arutyunyan, “Intellectual Property Law vs. Essential Facility Doctrine: Microsoft vs.
Commission”
Richard J. Gilbert and Alan J. Weinschel, “Competition Policy for Intellectual Property:
Balancing Competition and Reward”
Alden F. Abbott, “The Harmonization of Intellectual Property Rights and Competition Policy:
A Unified Approach to Economic Progress”
Cornelius Dube , “ Intellectual Property Rights and Competition Policy” ( CUTS

International, June 01, 2008)
Paul D. Marquandt & Mark Leddy, The Essential Facilities Doctrine and Intellectual Property
Rights: A Response to Pitofsky, Patterson & Hooks, 70 ANTITRUST L.J. 847 (2003)
Reiko Aoki, John Small, “Compulsory Licensing of Technology and the Essential Facilities
Doctrine”
Books Referred
Mark Furse, “Competition Law of the EC and UK” (6th edn., Oxford University Press, New
York, 2008)
Papers Referred
Organisation for Economic Co-operation and Development, „Essential Facilities Concept:

Policy Roundtable (1996)
Eshan Ghosh, “Competition Law and intellectual Property Rights with Special Reference to
the TRIPs Agreement” ( Research Paper for The Competition Commission of India,
February-March, 2010)
Thomas F. Cotter, „Essential Facilities Doctrine‟ ( Legal Studies Research Paper

Series ,Research Paper No. 08-18)
Daniel E. Gaynor, „ Technological Tying‟ (BUREAU OF ECONOMICS FEDERAL TRADE

COMMISSION, working paper 284, August 2006)
64
Leveque, F., „The Application of Essential Facility and Leveraging to Intellectual Property in
the EU: The Microsoft‟s Refusal to License to Interoperability‟ ( Working paper, May 31,
2006)
Websites Referred
http://www.ies.ee/iesp/No4/Arutyunyan.pdf
http://ssrn.com/abstract=931911
http://elsa.berkeley.edu/users/gilbert/wp/Antitrust_and_IP.pdf
http://www.ftc.gov/bc/international/docs/abbottipchina.pdf
http://www.cuts-international.org/pdf/viewpointpaper-IPRs-CompPolicy.pdf
http://www.cci.gov.in/images/media/ResearchReports/EshanGhosh.pdf
http://researchspace.auckland.ac.nz/bitstream/handle/2292/219/235.pdf?sequence=1
http://ssrn.com/abstract=1125368
http://www.oecd.org/dataoecd/34/20/1920021.pdf http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1567238
http://www.ftc.gov/os/comments/intelpropertycomments/pitofskyrobert.pdf
65

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“COMPETITION LAW AND INTELLECTUAL PROPERTY RIGHTS IN

INDIA: UNDERSTANDING THE INTERFACE.”

Under the Guidance of

NMIMS School of Law

NMIMS School of Law, Bangalore,2024-25

SVKM’s NMIMS, School of Law

Ms. Vedika Verma

Academic Guide (s)

1.Name of the Guide : Dr. Samraggi Chakraborty

Designation: Assistant Professor of Law

NMIMS School of Law,

Bannerghatta Main Road,

List of Abbreviations Definition

Dentsche Grammophon v Metro Case (1971) ECR

Hoffman La-Roche v Commission, ECJ 13 Feb 1979

Morton Salt Co v GS Suppiger Co. 314 U.S. 488 (1942)

NDC Health v IMS Health, Case C-418/01

Nokia Corp. v. InterDigital, Inc.

CCI v. Ericsson 2014.

CCI v. AIOVA (2018)

Keywords: Competition laws, Intellectual Property Rights, Commercialization, Market.

Conversely, intellectual property (IP) has traditionally been understood as the

1.2 Literature Review

1. “Intellectual Property And Competition Law: Divergence, Convergence, And

“Anti-Competitive Strategies Hamper Access to Medicines in Europe.”12

2. “Antitrust and Innovation: Where We Are and Where We Should Be Going.”13

3. “Antitrust treatment of oligopolies with mutually blocking patent portfolios.”14

4. “Examining the Interface Between the Objectives of Competition Policy and

5. “The interface between IPR and Competition Law(2011).”16

6. “The interface between IPR and Competition Law”.17

7. “Between Competition Law and Patents Law: A Pandora Box.”18

8. “Competition Policy And Intellectual Property in Todays’ Global Economy.”19

9. “The Application of Competition Policy vis-à-vis Intellectual Property Rights: The

11. “Competition Policy and Intellectual Property Rights.”22

1.3 Research Objectives

1. A complete investigation is necessary to understand the extent of divergence and

1.4 Research Statement

1.5 Research Questions

1. What do laws pertaining to intellectual property and competition seek to achieve?

1.6 Research Methodology

2.1 IP and Competition Law Objectives

2.1.1 Conflict and Reward Theory in Intellectual Property

2.1.3 An Objective of Intellectual Property Law: Encouraging Competition

The fundamental purpose of intellectual property rights—that is, to discourage innovation by

2.2 Modifications in Light of the New Goals

2.3 Problems caused by a lack of competence

Some have speculated that anti-trust or competition measures could be unnecessary if

2.4 Reason for the middle path.

2.5 When Does Each One Effectively Work?

2.6 The Extracts Of Competition Law

2.7 IP IS SUPPORTED BY COMPETITION LAWS

2.8 The Difference Between Legal and Economic Monopoly

Prohibiting anti-competitive behaviour, rather than monopolies, is the primary objective of

2.9 IP vs. Other Competitors: Competition Law Thresholds

2.11 Analysing Mergers via Competition in the Context of Intellectual Property

3.1 Legislative Evolution

3.2 Scope of Section 3 & 4 Competition Act, 2002

“3(5) Nothing contained in this sections hall restrict-