Pervasive Technologies: Working Document Series – Updated Research Methodology – Applying the Actor Network Theory to Competition Law and Standard Essential Patent Litigation in India

Read the earlier posts:

• Pervasive Technologies Project Working Document Series: Document 1 - Research Methodology for a Paper on Competition Law + IPR + Access to < $100 Mobile Devices
• Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

In New Delhi, as in Fascist Milan or Nazi Berlin, the individual is lost; the scale is not human but super human; not national, but super-national: it is, in a word, Imperial.[1]

Twenty plus years later, written after he was awe-struck by the grandeur of the Rashtrapati Bhawan in New Delhi, Dalrymple’s delightful choice of words on the similarities between Lutyen’s Delhi and Speer’s Nuremberg[2] rather aptly describe today’s globalized narrative of intellectual property (“IP”) rights determination and ownership. The process of determination of standards applied in mobile devices, claims of IP ownership in these standards and the subsequent enforcement (globally) of these IP claims are all instances of this narrative.

The increasingly global nature of both – innovation and intellectual property has been well documented by researchers over the years and needs no further exploration in this article. This article will seek to examine how this narrative influences (either overtly or covertly) the application of competition law to the regulation of standard essential patents (SEPs) in India. More specifically, this article seeks to study the role of various human and non-human actors involved were competition law to be considered as a potential solution to the matter of SEP litigation in India.

This article examines four research questions. First, how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement? Second, what are the important competition law issues in SEP litigation in the United States of America (“USA”) and the European Union (“EU”), and how have regulators (the Federal Trade Commission (“FTC”) and the European Commission (“EC”) respectively) and courts in these jurisdictions addressed these issues? Third, what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions? Fourth, could solutions and methodology from the FTC and the EC be applied to SEP competition law matters in India?

In this effort, this article will employ Bruno Latour’s Actor-Network Theory[3] (“ANT”) as the primary research methodology, supplemented where needed by others including comparative research and case studies. A detailed approach into discussing the (above) research questions has been discussed below.

Question one - how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement?

This question primarily seeks to explain the determination SEPs on standards through International Standard Setting Organizations (“SSOs”) and the subsequent obligation on members of the SSOs to licence these SEPs on a Fair, Reasonable and Non Discriminatory (“FRAND”) basis.

Applying the ANT, this question will identify both human and non-human actors and that play a role internationally, in the determination of SEPs and their licensing. Illustratively, these actors include the SSOs, multinational corporations that are members of the SSOs, the FRAND licences and the contracts/terms of reference between the SSOs and their member corporations. In order to address this question, the author will refer to academic writing and other literature explaining the role of various actors and the international nature of the standard setting process. Networks that these actors share with each other and the possible influences to the determination of international standards will be studied. This question will explore the international IP environment, and the power of various actors that have an influence on IP norm setting, and attempt to locate the power of these various actors in their network setting.

Question two - what are the important competition law issues in SEP litigation in the USA and the EU, and how have regulators (the FTC and the EC respectively) and courts in these jurisdictions addressed these issues?

This question will study the competition law issues arising from the international determination of standards and the cross-border assertion and enforcement of intellectual property rights discussed in the previous question. This question will also study how (first, whether) courts and regulators have attempted to address some of the competition law issues.

Also applying the ANT, this question will identify various actors involved in competition law litigation around SEPs before the FTC, EC and the courts in the USA and the EU. Illustratively, these include the parties to the litigation, the regulator (whether the FTC or the EC), the court and the legal principles employed. Further applying the ANT, this question will also study how the various actors relate to one another, as a result of their connections within this network, i.e., the litigation, and other connections in other networks (for instance, the position of the parties in certain markets).

Under this research question, select a case study method will be employed to select cases from each jurisdiction. The most important cases pertaining to competition law questions will be studied. These are yet to be identified.

Question three - what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions?

This research question will seek to map the global context around SEP litigation (discussed above) to specific cases in India. In doing so, the author will study the two SEP disputes in India with competition law implications – the Ericsson and Micromax dispute and the Ericsson and Intex dispute; based on information available in the public domain. While there are other pending disputes around SEPs in India, they do not involve the Competition Commission of India (India’s market regulator), and hence are outside the scope of this article. Through a study of these cases, questions of competition law will be identified. Such questions may be either those as a result of the direct application of the Competition Act, 2000 or certain actions taken by the courts with competition law implications (for instance, granting ex-parte interim injunctions).

Having identified competition law issues in SEP litigation in India, the author will then employ the comparative research methodology to trace similar issues in international SEP litigation, discussed under the previous research question. What the author is most interested in locating is the position of the actors in domestic as well as international SEP litigation. Specifically, it is submitted that characters in the domestic litigation also trace back to the context of global IP norm setting; some of them more directly than others. For instance, multinational corporations are directly involved in IP norm setting and are a party to domestic disputes. Further, domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actors. This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation.

Question four- what are the challenges for competition regulation of SEPs in India; do principles and methodology from the FTC/ EU and courts present solutions to these challenges?

In this question, the author deliberates the challenge of competition regulation for SEPs in India and whether the approach of international regulators and courts could serve as a roadmap to address these issues.

In answering this question, the author will trace India’s specific location in global competition. The tensions between differently situated actors and the networks that they form will be examined. Some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative ‘youth’ of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. This phase will also attempt to make a case for IP regulation within India’s existing culture of engaging with the public interest in intellectual property regulation.

Having examined global IP norm setting in SEPs, international and domestic issues around SEP litigation and the network of actors involved in these proceedings, in concluding this article, the author seeks to illustrate how actors and networks in the SEP-competition set-up derive power from each other; and how the location of an actor within a network is likely to influence law and regulation. Tracing this location will then in turn be useful in determining what solutions would best address the matter of competition regulation for SEPs in India.

[1]William Dalrymple, The City of Djinns – A Year in Delhi (rep. 2014, Penguin, India) at 83.

[2]Id at 82.

[3]Bruno Latour, Networks, Societies, Spheres: Reflections of an Actor – Network Theorist, International Journal of Communication 5 (2011), 796- 810, http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (accessed 31 August, 2015).