Licensing Royalties and Relevant Market Concerns: The ‘Relevance’ of Preparing the Field Before the Match
Anmol Aggarwal & Ria Bansal*
Volume 17 Issue 1 (2024)
The Competition Commission of India (CCI) has always been vested with the jurisdiction of delineating the relevant market in cases of abuse of dominance. However, recently, in the case of Telefonaktiebolaget Lm Ericsson (Publ) v. Competition Commission of India, it was held that the Patents Act, 1970 and the courts would prevail over the CCI in the assessment of the rights of a patentee. Within the case text, one of the contentions that ultimately paved the path for such a detrimental ruling was that the calculation of Fair, Reasonable and Non-Discriminatory rates (‘FRAND’) does not require the delineation of a relevant market and hence, the CCI does not exercise jurisdiction over it. However, figuring out a rightful FRAND rate (which deters the abuse) depends entirely on the comparative analysis of substitutes of a product in a given relevant market since such a rate cannot be fixed arbitrarily and has to be equal for all licensees. Hence, in this article, the authors argue that the jurisdiction of the determination of licensing royalties in the cases of abuse of dominance by a patent holder lies with the CCI alone.