Multi-dimensional Approaches Towards New Technology

350 Pages·2018·4.032 MB·English

by  Ashish Bharadwaj, Vishwas H. Devaiah, Indranath Gupta

Ashish Bharadwaj · Vishwas H. Devaiah 
Editors
Indranath Gupta
Multi-dimensional
Approaches
Towards New
Technology
Insights on Innovation, Patents and
Competition
Multi-dimensional Approaches Towards
New Technology
Ashish Bharadwaj Vishwas H. Devaiah
(cid:129)
Indranath Gupta
Editors
Multi-dimensional
Approaches Towards
New Technology
Insights on Innovation, Patents
and Competition
Editors
AshishBharadwaj Indranath Gupta
Jindal GlobalLawSchool Jindal GlobalLawSchool
O.P. JindalGlobal University O.P. JindalGlobal University
Sonipat, Haryana,India Sonipat, Haryana,India
Vishwas H.Devaiah
Jindal GlobalLawSchool
O.P. JindalGlobal University
Sonipat, Haryana,India
Disclosure: Opinions expressed in the chapters are independent of any research grants received
from governmental, intergovernmental and private organizations. The authors’ opinions are
personal and are based upon their research findings and do not reflect the opinions of their
institutionalaffiliations.
ISBN978-981-13-1231-1 ISBN978-981-13-1232-8 (eBook)
https://doi.org/10.1007/978-981-13-1232-8
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We dedicate this book to all risk-taking
innovators in science and technology, who
made us believe that the best way to
deconstruct the future is to invent it. Their
capabilityistonotseechangeasathreat,but
as an opportunity.
Acknowledgements
We are extremely grateful to all contributors who took time out of their busy
schedule and ensured timely completion of this project. This has been made pos-
sible because of the extraordinary efforts of Mr. Dipesh A. Jain and valuable
support of Vishal Shrivastava, Srajan Jain, Shruti Bhushan, Joy Saini, Jahnavi,
KrishnaKumar,IshaGaba,NavreetKaurRana,KajalMalik,PunkhuriChawlaand
Bhupender Kumar who spent several hours of their precious time towards this
project.Itistowardsallofthemweoweourgratitude.Wewouldalsoliketothank
our family and our colleagues at O.P. Jindal Global University (JGU) for their
constantencouragement.WeadmireunconditionalsupportofourViceChancellor,
Prof.C.RajKumar.FoundationsofJIRICOarerootedinhisvisionandleadership.
vii
Contents
Part I Law and Policy Dilemmas in Innovation Intensive Industries
1 Intellectual Property and Competition Law: Understanding
the Interplay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Hanna Stakheyeva
2 The Interaction Between Intellectual Property Law
and Competition Law in the EU: Necessity of Convergent
Interpretation with the Principles Established
by the Relevant Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Nikolaos E. Zevgolis
3 The Relevance of Standardization in a Future Competitive India
and the Role of Policy Makers, Antitrust Authorities and Courts
to Promote it. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Sheetal Chopra, Matteo Sabattini and Dina Kallay
4 The Role of the European Commission in the Development
of the ETSI IPR Policy and the Nature of FRAND
in Standardization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Eric L. Stasik
5 All Good Things Mustn’t Come to an End: Reigniting
the Debate on Patent Policy and Standard Setting . . . . . . . . . . . . . 85
Ashish Bharadwaj, Manveen Singh and Srajan Jain
Part II Evolving Jurisprudence in Standard Essential Patents
6 Interpreting the ‘FRAND’ in FRAND Licensing: Licensing
and Competition Law Ramifications of the 2017 Unwired
Planet v Huawei UK High Court Judgements . . . . . . . . . . . . . . . . . 119
Noah D. Mesel
ix
x Contents
7 Evolving Huawei Framework: SEPs and Grant of Injunctions. . . . 137
Indranath Gupta, Vishwas H. Devaiah, Dipesh A. Jain
and Vishal Shrivastava
8 The Development andTheoretical Controversy ofSEPLicensing
Practices in China. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Yang Cao
9 Regulating Abuse of SEPs in Mobile Communications Market:
Reviewing 1st and 2nd Qualcomm Cases in Korea. . . . . . . . . . . . . 163
Dae-Sik Hong
10 Regulating Standard Essential Patents in Implementer-Oriented
Countries: Insights from India and Japan . . . . . . . . . . . . . . . . . . . 183
Ashish Bharadwaj and Tohru Yoshioka-Kobayashi
Part III Perspectives from Indian Competition and Patent Law
11 Predatory Pricing in Platform Competition: Economic Theory
and Indian Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Aditya Bhattacharjea
12 Competition Law and Standard Essential Patent (SEP) in India:
A Few Critical Issues to Ponder . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Geeta Gouri
13 Interface Between Antitrust Law and Intellectual Property
in the Payment Systems Market in India . . . . . . . . . . . . . . . . . . . . 243
Yogesh Dubey and Konark Bhandari
14 Towards a Transaction Cost Approach to the Essential Facilities
Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Yugank Goyal, Padmanabha Ramanujam and Anmol Patel
15 Local Working of Patents: The Perspective of Developing
Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Althaf Marsoof
Editors and Contributors
About the Editors
Ashish Bharadwaj is Associate Professor in Jindal Global Law School (JGLS),
and Executive Director of the Office of Rankings, Benchmarking and Institutional
TransformationatO.P.JindalGlobalUniversity(JGU).Healsoservesasfounding
Co-DirectorofJindalInitiativeonResearchinIntellectualProperty&Competition
(JIRICO). His research is on the role of technology and innovation in shaping
societies, technical standards/SSOs and patent licensing, national IPR policies as
wellasSTIpolicies,especiallyindevelopingandemergingeconomies.Heteaches
courses in economics, economic analysis of law; innovation and society and
technologypolicy.HeisanaffiliatedfacultyattheCenterforIPResearch,Maurer
School of Law, Indiana University (Bloomington), USA, and a visiting associate
professor at the Institute for Innovation Research, Hitotsubashi University in
Tokyo, Japan. He has been a Research Fellow at the Max Planck Institute for
Innovation and Competition (Munich), Germany. He is a recipient of the Max
Planck Society fellowship, and Erasmus Mundus scholarship awarded by the
European Commission. He holds a Ph.D. from the Max Planck Institute for
Innovation and Competition in Munich (LMU/University of Munich, Germany);
LL.M. (European Master in Law and Economics) from Erasmus University
Rotterdam, University of Hamburg and University of Manchester; M.Sc. in
Economics from Madras School of Economics, College of Engineering, Anna
University; and B.A. Honors in Economics from Delhi University.
VishwasH.Devaiah isAssociateProfessorattheJGLS,ExecutiveDirectorofthe
CentreforIntellectualPropertyandTechnologyLaw(CIPTEL),andCo-Directorof
JIRICOwherehehasledresearchandcapacitybuildingofJIRICO.Healsoserves
as the Managing Editor of JGLS’s flagship journal, Jindal Global Law Review,
whichispublishedbySpringer.Hisprimaryareasofinterestarepatentlaw,health
law and biotechnology law. He has published widely and serves as a reviewer for
theAsianComparativeLawJournal,theNUJSLawReviewandtheIndianJournal
of Medical Ethics. He was awardedthe 2015 Microsoft IP Teaching Fellowshipto
xi
xii EditorsandContributors
engage with researchers in University of Washington Law School in Seattle. He
obtained a Ph.D. from the University of Liverpool, UK; an LL.M. degree from
Warwick University, UK; and Bachelor of Law (BAL, LL.B.) degrees from
University Law College, Bangalore University. His Ph.D. research was on the
regulation of human embryonic stem cell research, titled “Protecting egg donors
and patients in human embryonic stem cell research: A critical analysis of the
current and proposed regulation in India”.
Indranath Gupta is Associate Research Professor at the JGLS. He is Assistant
DirectoroftheCentreforPostgraduateLegalStudiesandtheCentreforIntellectual
Property and Technology Law. He is Co-Director of JIRICO, Assistant Dean
(Student Initiatives), and Senior Fellow at the Jindal Institute of Behavioural
Sciences (JIBS). He received his LL.B. degree from the University of Calcutta,
India; holds an LL.M. with distinction from the University of Aberdeen, UK; and
holdsapostgraduateresearchLL.M.inComputerLawfromtheUniversityofEast
Anglia, UK. He obtained his Ph.D. from Brunel University, London, UK. He has
been involved in qualitative and quantitative research. He was appointed as the
research collaborator by the Università Bocconi, Milan, Italy, for a project funded
by the European Commission under the 7th Framework Programme, and he is
actively involved in a research project on copyright with researchers in Nanyang
Technological University in Singapore. He has also worked as an advocate in a
solicitor’s firm at the Calcutta High Court. He has published in European and
IndianLawjournalsandhasspokenatinternationalconferencesandseminars.His
researchareas includedatabaseright,copyright,data protection, cyber lawandthe
interface of IP and competition law.
Contributors
Konark Bhandari is currently engaged as a Research Associate at the
Competition Commission of India (CCI). He has been earlier involved with the
Combination Division and is currently working in Investigation Division. Prior to
theworking withtheCCI,hewas working asaForeignLawyer inSingaporewith
the law firm Rajah & Tann LLP. He holds an LL.B degree from Symbiosis Law
School,Pune,andhascompletedhisLL.M.fromNationalUniversityofSingapore.
Hehas publishedinOxfordUniversityPress’JournalofAntitrustEnforcement,the
All India Reporter (AIR) and Corporate Law Adviser.
Aditya Bhattacharjea is Professor of Economics at the Delhi School of
Economics, University of Delhi, India, where he teaches postgraduate courses in
industrialorganizationandIndianeconomicdevelopment.HeservedasHeadofthe
EconomicsDepartmentofDSEfrom2014–18.Heearlier taughtformanyyearsat
St. Stephen’s College, Delhi, and has been a visiting associate professor at Duke
University, USA. His research interests include trade policy under imperfect com-
petition, labour market regulation, and competition (antitrust) law and policy. His