tag:blogger.com,1999:blog-5949922529631180407.post4220711372590405911..comments2024-03-26T01:16:29.449+05:30Comments on The Demanding Mistress: Sections 60 and 62 of the Competition Act- Are they Inconsistent?J.Sai Deepakhttp://www.blogger.com/profile/08357301068067861565noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-5949922529631180407.post-4361499360461335082013-09-08T12:46:59.257+05:302013-09-08T12:46:59.257+05:30And by the way, a "balanced market" is n...And by the way, a "balanced market" is not a "homogeneous market". In fact, a heterogeneous market is a more competitive market with lesser scope for dominance, which I think is the object of the Competition Act :-)J.Sai Deepakhttps://www.blogger.com/profile/08357301068067861565noreply@blogger.comtag:blogger.com,1999:blog-5949922529631180407.post-74175689923806779862013-09-08T12:40:43.206+05:302013-09-08T12:40:43.206+05:30typo in the last sentence of the last comment. I m...typo in the last sentence of the last comment. I meant do justice *to the language of the provisions.J.Sai Deepakhttps://www.blogger.com/profile/08357301068067861565noreply@blogger.comtag:blogger.com,1999:blog-5949922529631180407.post-36904808199973502292013-09-08T12:38:56.668+05:302013-09-08T12:38:56.668+05:30Sneha, I also notice that your comment seems to be...Sneha, I also notice that your comment seems to be based on the premise that since the objects of the statutes are different, there cannot be an overlap with respect to a specific transaction. Could you please explain the basis for this opinion? Isn’t the opinion based on a reductionist approach, when express provisions of the statutes seem to envisage significant intersections? If unfair price is specifically provided for under Section 4(2)(a)(ii) of the Competition Act, would it not include the cost of a patent license? If yes, wouldn’t license fees be equally subject to the rigours of Section 84 of the Patents Act? If yes, why should the so-called objects of the statutes prevent simultaneous application when their express provisions do not exclude such application? The scope of outcomes could vary because of the powers under those statutes, but how does that suggest that in a given situation with respect to the same transaction both statutes are mutually exclusive? I think we should do justice do the language of the provisions instead of proceeding on pre-conceived notions of what they promote or attract. J.Sai Deepakhttps://www.blogger.com/profile/08357301068067861565noreply@blogger.comtag:blogger.com,1999:blog-5949922529631180407.post-35820282960273544842013-09-08T12:28:07.847+05:302013-09-08T12:28:07.847+05:30Dear Sneha,
Thanks for the comment. I was in the p...Dear Sneha,<br />Thanks for the comment. I was in the process of putting up a follow-up post which would have addressed your query, however let me immediately address it. <br /><br />On first blush, one would be tempted to agree with you, however the comment seems to proceed on the assumption that “public” under Section 84(1)(b) has to, under all circumstances, be construed as a reference to the “end consumer”, and can never include a service provider. I am not sure such an assumption is warranted because who is the “end consumer” with respect to a given a patent/patented product is an issue that deserves more than a cut-and-dried approach. For instance, if the patent is over a technology that addresses issues relating to base station equipment, who would be the end consumer of the patent? The service provider/telecom operator who owns the base station, or a mobile phone user who consumes the service provided by the base service provider/base station owner? If one were to accept your position, it would mean that no service provider who uses a patented technology can seek a CL citing only Section 84(1)(b). <br /><br />The short point I am trying to make is that it appears unreasonable to contend that every patented invention is and must be capable of being directly consumed by the end user. This cannot be so because the service which is being made available could be the result of several patent licenses at work, not all of which can be directly consumed by the end user of a service. Consequently, in areas such as the telecom industry, the service provider who is the consumer of the patented invention which is being used to provide a service to an end user, may be treated as “public” under Section 84(1)(b). Therefore, there do exist situations where the service provider can legitimately invoke Section 84(1)(b) of the Patents Act and Section 4(2)(a)(ii) of the Competition Act. In other words, the price at which the patent license is being offered to the service provider must be “reasonably affordable” and “fair”, assuming they are not synonymous.<br />In the alternative, I would like to draw your attention to Section 84(6)(iv) which suggests that there is necessarily a connection between the terms on which a license to a patent is made available and “reasonably affordable price” under Section 84(1)(b). After all, the price at which the patented technology is being made available to the base station owner could affect the price at which his service is being made available to the mobile phone subscriber. Viewed even through this angle, it is still possible for a service provider to raise Section 4 of the Competition Act stating that the terms of the license and the license fee are unfair, thereby leading to a situation where the price of the service provided to the consumer is not reasonably affordable to the consumer. <br /><br />Hope this helps resolve your confusion.<br /><br />Bests,<br />Sai.<br />J.Sai Deepakhttps://www.blogger.com/profile/08357301068067861565noreply@blogger.comtag:blogger.com,1999:blog-5949922529631180407.post-34496983378710070782013-09-08T11:38:46.428+05:302013-09-08T11:38:46.428+05:30Dear Sir,
I am posting a comment just to share th...Dear Sir,<br /><br />I am posting a comment just to share that I fail to understand how there can ever be any confusion between these two aspects of Patent and Competition Law.<br /><br />In my opinion, the fact that "reasonable price" under Patents' Act refers to that available to consumers and is only only of the requirements for grant of a CL, puts it on an altogether different footing from "unfair price" which is a concern for goods/ service providers. Hence on that premise itself the two terms are incomparable. <br /><br />The tests for establishing both would be separate and both look at different results. While one looks at CL to be given for affordability/availability etc. of a patented product, the other aims towards a balanced market (homogeneity)avoiding dominance of one player.<br /><br />So, where "unreasonable price" is a "cause" for C. License, the said license be "fair" is what Competition Act demands.<br /><br />All this I say to the best of my knowledge and understanding. Contradictions are welcome.<br /><br />Congratulations on the informative posts that you share.<br /><br />Best Regards,<br />Sneha Sharma<br />Anonymoushttps://www.blogger.com/profile/14775822803339671555noreply@blogger.com