In March 2016, the DIPP had circulated a “Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms.” It contained several issues for resolution inter alia relating to the need for amending statutes, creating guidelines for Indian SSOs, defining FRAND and fixing royalty calculation methodologies, use of non-disclosure agreements, transparency and patent pooling.
The deliberations on the 6G Alliance propose to create 100 specification-dependent 6G SEPs – this would increase India’s visibility from nothing to something; but, other than increasing visibility, there is no policy direction on what our long-term domestic innovation goals are, where we place ourselves in the global SEP ecosystem, and how we want to support our domestic innovators. The proposed Telecom Policy advocates for a Sovereign Patent Fund – a mechanism that has been tried, tested and failed in several other jurisdictions, considered very problematic and an idea that’s possibly outdated.
In the limited discourse that has followed on this topic, several concerns are apparent. First, the blanket mandate of creating more SEPs is disjointed from any discussion on domestic directions on the FRAND commitment. With lack of a background clarification on what meaning basic SEP concepts hold in the Indian innovation ecosystem, the success of targeted sector-specific policies will be very limited. Additionally, a broader question is whether the Indian policy-making regime believes that a separate regulatory framework must define SEP participation rules for every innovation and manufacturing sector? It is not the requirement, nor the need, of an SEP policy to identify every domain sub-structure and dictate its behaviour. For a policy on SEPs to bring a sense of certainty, rules of conduct need to be defined broadly for the entire innovation ecosystem.
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