Comments on the DIPP Discussion Paper on Standard-Essential Patents and Their Availability on FRAND Terms

This note was submitted by Yogesh Pai, Assistant Professor of Law and Co-Director of the Centre for Innovation, Intellectual Property and Competition (CIIPC) in response to the “Discussion Paper on Standard-Essential Patents and their Availability on FRAND terms” floated by the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry, Government of India. It discusses the legal position and policy dynamics involving Standard Essential Patents. The comments highlight that caution must be exercised and more empirical based studies must be relied on before assuming that there are immediate policy changes that need to be made. It is submitted that the DIPP must exercise extreme caution in making strong policy interventions in a dynamic context of innovation and technical change. It is submitted that policy makers ought to defer to the prevailing statutory framework, regulatory and judicial scrutiny before making irreversible policy changes. It is the opinion of the author that such a deference thesis will help the Government of India to make the right policy changes, whenever needed, and yet save it from making incorrect policy decisions.

The comments can be downloaded here.