Our product standards lack an IPR context

Over the last few years India and many countries have been witnessing increased litigations and debates on royalty payments and terms for licensing of standard essential patents, utilised in complex technology areas such as mobile telephony.

Indian jurisprudence in this regard, specially handling royalty issues, is at a nascent stage. There is an urgent need to address the issue in view of growing number mobile users in India and preference for the latest technologies.

Mobile telephony technologies embrace text, voice, data, videos, animation, graphics, at the same time. High speed, accuracy, consistency and reliability, the hallmark of mobile telephony, are possible only through adherence to well-developed open standards driven by patents, extensive research and collaboration among nations and companies.

Standards are developed and promulgated by standard setting organisations (SSO) such as Bureau of Indian Standards (BIS), International Organisation for Standardisation (ISO), International Telecommunication Union (ITU) to ensure that users’ requirements are most suitably met through correct and accurate specification related to dimensions, properties, performance, safety and other parameters.

Technologies are central in formulation of standards and such technologies may or may not be protected by patents. Permission for patents is usually granted through a license agreement.

In order to ensure that technologies are available to interested parties without any barriers, many SSOs have their IPR policies, making it obligatory for patent holders to share their patents if they want their technology in the standard. The interplay between standards and patents is seen more frequently in the IT domain.

Standards in the specific context of mobile phones ensure interoperability and communication between various devices from different manufacturers and a variety of networks. A USB port is a good example of a standard which has enhanced communication among so many different digital devices.

A smart phone embodies a few thousand patents owned by many companies from different countries and is governed by several standards. There are some patents which are essential for implementing standards and are known as Essential Patents. A study by British Standards Institute suggests that the standards could contribute upto 0.3-0.9 per cent to the GDP.

It has taken extensive fundamental research, high quality science, efficient manufacturing methods and infrastructural development in formulating and implementing international standards for mobile telephony. The development period of standards for various distinct features has ranged from 10-30 years with participation of almost 50 countries and a few hundred companies consuming several millions of person hours.

Such monumental efforts have led to evolution of 4G that takes only 90 seconds to download a 90 minute high definition movie, as against the 2G technology which would take about 75 hours to do the same job.

The BIS Act of 1986 has no mention of an IPR policy or linkage between patents and standards. Even the new Bill of 2015 does not cover this dimension. It can therefore be appreciated as to why the linkage between patents and standards is not well understood in India.

The Indian manufacturers of mobile devices for 2G and 3G technologies utilise several Essential Patents which have been granted in India. These manufacturers need to pay a reasonable remuneration for using Essential Patents.

The Telecommunications Standards Development Society of India (TSDSI) has been recently set up (2013) to develop national standards in telecommunications. It has its IPR policy and TSDSI will open up India’s participation in the international standards-making process.

Fair Reasonable and Non-discriminatory (FRAND) system for licensing of Essential Patents as evolved by SSO provides the licensee the rights to manufacture devices based on patents covering standards and sell such devices.

This system tends to ensure that the parties act in good faith enabling availability of technology to a wider audience at affordable prices. This system also ensures that the implementer of the technology is equally under the obligation to act in good faith.

Injunctive reliefs in case of infringement of Essential Patents covered under FRAND have become a subject of intensive debate in many countries. The Delhi High Court has shown its initial preference for applying the FRAND principle in multiple cases, as everyone waits for the final decisions.

It is imperative that governments, manufacturers, patent holders and SSO should evolve a system of licensing of Essential Patents in India.

The writer is a senior scientist