Ashish Bharadwaj · Vishwas H. Devaiah Indranath Gupta Editors Multi-dimensional Approaches Towards New Technology Insights on Innovation, Patents and Competition Multi-dimensional Approaches Towards New Technology Ashish Bharadwaj • Vishwas H. Devaiah Indranath Gupta Editors Multi-dimensional Approaches Towards New Technology Insights on Innovation, Patents and Competition Editors Ashish Bharadwaj Indranath Gupta Jindal Global Law School Jindal Global Law School O.P. Jindal Global University O.P. Jindal Global University Sonipat, Haryana, India Sonipat, Haryana, India Vishwas H. Devaiah Jindal Global Law School O.P. Jindal Global 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 institutional affiliations. ISBN 978-981-13-1231-1 ISBN 978-981-13-1232-8 (eBook) https://doi.org/10.1007/978-981-13-1232-8 Library of Congress Control Number: 2018945460 © The Editor(s) (if applicable) and The Author(s) 2018. This book is an open access publication. Open Access This book is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adap- tation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made. The images or other third party material in this book are included in the book’s Creative Commons license, unless indicated otherwise in a credit line to the material. 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Printed on acid-free paper This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore 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 capability is to not see change as a threat, 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, Krishna Kumar, Isha Gaba, Navreet Kaur Rana, Kajal Malik, Punkhuri Chawla and Bhupender Kumar who spent several hours of their precious time towards this project. It is towards all of them we owe our gratitude. We would also like to thank our family and our colleagues at O.P. Jindal Global University (JGU) for their constant encouragement. We admire unconditional support of our Vice Chancellor, Prof. C. Raj Kumar. Foundations of JIRICO are rooted in his vision and leadership. 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 and Theoretical Controversy of SEP Licensing 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 Transformation at O.P. Jindal Global University (JGU). He also serves as founding Co-Director of Jindal Initiative on Research in Intellectual Property & 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 well as STI policies, especially in developing and emerging economies. He teaches courses in economics, economic analysis of law; innovation and society and technology policy. He is an affiliated faculty at the Center for IP Research, 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. Vishwas H. Devaiah is Associate Professor at the JGLS, Executive Director of the Centre for Intellectual Property and Technology Law (CIPTEL), and Co-Director of JIRICO where he has led research and capacity building of JIRICO. He also serves as the Managing Editor of JGLS’s flagship journal, Jindal Global Law Review, which is published by Springer. His primary areas of interest are patent law, health law and biotechnology law. He has published widely and serves as a reviewer for the Asian Comparative Law Journal, the NUJS Law Review and the Indian Journal of Medical Ethics. He was awarded the 2015 Microsoft IP Teaching Fellowship to xi xii Editors and Contributors 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 Director