Lessons for SEP holders

Pravin Anand and Abhilasha Nautiyal on trends, and do’s and don’ts, for standard essential patents litigation

In recent times, India has become a battlefield for standard essential patents (SEP) litigation. Several SEP holders, including Philips, Ericsson, Dolby and Vringo, have chosen Indian courts, specifically Delhi High Court, as the forum to litigate their SEPs.

Philips was the first to land on Indian shores to litigate its SEPs, and it was almost poetic justice when judgment was reserved in a Philips SEP lawsuit in July 2017, becoming the first SEP case in which post-trial judgment was reserved. Ericsson, another big SEP litigant in India, has tried to expedite trial in its cases, and in fact one such case, Ericsson v Lava, has been pending at the final hearing stage for a while now.

India introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act in 2016. This legislation identifies certain cases, including patent litigation, as “commercial cases” and provides for, among other things, expedited procedures for such lawsuits.

However, even prior to this legislation, India witnessed significant SEP action. One reason for this is the size of the Indian market, and also the localized operations of several large implementers. It helps that litigating in India is more economical than in several sophisticated jurisdictions.

Given that the SEP landscape in India is still developing, SEP holders may have viewed this clean slate as an advantage and tried to seize the opportunity to mould the law favourably.

Successes in initial cases have paved the way for further SEP litigation in India.

Pravin Anand is the managing partner of Anand and Anand, where Abhilasha Nautiyal is a managing associate.