Yogesh Pai

Increasingly, courts across several jurisdictions are unwilling to grant injunctions in cases involving infringement of Standards-Essential Patents (SEPs), the teleological reason being the unfair/inequitable outcomes due to the patentee gaining an additional market power not conveyed by the patent. The courts by evaluating the equitable factors deny injunctions based on an underlying logic that since a patentee is purely interested in deriving royalty on his patents committed by way of Fair-Reasonable and Non-Discriminatory (FRAND) licensing offers he may be compensated monetarily in lieu of an injunction. However, availability of adequate remedy at law coupled with lack of irreparable harm due to existence of FRAND commitment is not the only way to explain the rational basis for lack of injunctive relief when viewed through a theoretical and conceptual prism. This note chronicles the legal construct of patent injunctions from a comparative law perspective and articulates that the rational basis for denial of an injunction for alleged infringement of SEPs is due to patent law’s inability to construe the ‘right to exclude’ and its relationship with SEPs protected market since it is fraught with conceptual and inherent definitional fallacies of assessment of ‘market power’ that go beyond the pale of patent law and policy.

... research team at Lexbiosis on some aspects of the study and special thanks to Shreya Munoth (IV Year Student, NLU, Jodhpur) for proofreading the manuscript. The views ... Murli ManoharJoshi does not seem to have taken note of the Committee report and ...

The 2002 amendment to the Indian Patents Act, 1970, allowed computer program-related inventions to be patentable, save for certain specific exclusions. The Patent (Amendment) Ordinance of 2004 tried to expand the scope of computer program patentability by melting down those specific exclusions. In 2005, the Indian Parliament categorically rejected the amendments as suggested in the Ordinance, thereby maintaining the status quo on the issue. The new legislative context advocated that a proper interpretation fostering the Parliament's intention be undertaken. Interestingly, the persistent policy of the Indian Patent Office is in favor of expanding notions of computer program patentability, as reflected in its draft manuals, suggesting interpretations quite contrary to the legislative intention and the statutory mandate. The need recommends that the Indian Patent Office does not fall in line with its US and EU counterparts, which are now being accused of granting “questionable patents”, thereby taciturnly mooting for a serious patent law reform. The current taste of disapproval for intrinsic patentability of computer programs is corroborative of the original interpretations suggested here, as connoting the exact intention of the Indian Parliament.