With 70% internet penetration and over 600 million smart device users, India stands at a critical digital crossroads. The digital economy is poised to generate around one-fifth of India’s GDP. Yet much of this economy rests on globally developed technical standards and Standard Essential Patents (SEPs) — a class of intellectual property (IP) that protects technologies essential to these standards. India’s innovation trajectory is undeniable, yet its footprint in defining and owning critical SEPs remains razor thin.
Recently, the Supreme Court brought a long-awaited quietus to the battle between the Competition Commission of India and patent owners. Resolving a 2013 dispute over patent licensing, the Supreme Court refused to interfere with the Delhi High Court’s ruling that India’s patent legislation is a complete code that prevails over the Competition Act. (HT Archive)
While the Indian Patent Office granted 100,000 patents in FY24, our contribution to global technologies is below 0.1%. Despite the intellect to invent, we are a net importer of technologies. We are building our future on infrastructure we don’t own, using technologies we don’t always wish to acknowledge.
Recently, the Supreme Court brought a long-awaited quietus to the battle between the Competition Commission of India and patent owners. Resolving a 2013 dispute over patent licensing, the Court refused to interfere with the Delhi High Court (HC)’s ruling that India’s patent legislation is a complete code that prevails over the Competition Act. The broader questions of law were left open, but the decision refocused attention on patent and contract laws and policies to advance innovation.
A myth is that strong IP rights hinder access and advancement. Valuing and accounting for IP is the lifeline of open, interoperable standards that enable India’s social welfare architecture. Jan-Dhan accounts, Aadhaar-enabled Direct Benefit Transfers, and the Unified Payments Interface depend on globally interoperable standards. India’s National Agriculture Market trading portal and MGNREGA digitisation are propelled by technologies that support market access and direct payment to beneficiaries.
Patents solve the disclosure problem. That is why litigation should be a last resort in matters where market participants can reach a consensus on their own. Without enforceable rights, new technology won’t be shared with any global body for fear of misappropriation. This creates tension between the short-term goal of making technology cheap and accessible (static efficiency) and ensuring sufficient incentive to invent the next generation (dynamic efficiency). Weak returns for creators and innovators discourage contributions to the standards that keep system costs low. If this breaks the R&D cycle, the connectivity the marginalised rely on may eventually stall. The economic foundation of this framework, cemented in global jurisprudence, is FRAND, i.e., Fair, Reasonable, and Non-Discriminatory terms for making IP available to all.
The 2015 Huawei v. ZTE decision of the European Union’s highest court offered a neat and balanced structure for this technical complexity. Indian jurisprudence further adopted the logic in the UK Supreme Court’s Unwired Planet v. Huawei, allowing consideration of market context and royalty structures tied to products embodying standardised technology. Courts worldwide, including in India, have recognised reciprocal willingness, good-faith conduct, and the importance of examining comparable licences. These principles ensure scientific advancement and access to technologies on which India’s present and future depend.
Indian jurisprudence reached a watershed moment when the Delhi HC decided Philips v. Rajesh Bansal in 2018. As India’s first post-trial SEP case, it was covered globally as a sign of India’s arrival in complex, high-stakes patent licensing disputes. It was a pragmatic, economically grounded recognition of the complexities inherent in frontier technologies that serve public interest.
The Delhi HC’s division bench sharply tested this optimism, vacating the decree in May 2026 and dismantling the doctrinal foundations of Indian SEP enforcement. By imposing a “strict evidentiary template,” the FRAND undertaking shifted from a facilitator of private ordering to a source of greater, costly, and uncertain litigation. It inadvertently subsidised a culture of patent trespass that can erode the incentives to disclose and develop relevant technologies. This decision seems to have prioritised procedural and evidentiary formalism over commercial structures.
Unduly difficult enforcement promotes infringement. A lack of credible SEPs and an inability to justify their value rig the game before it starts. Courts strive to preserve both. A legal impasse threatens to decouple India from global tech standards — a disastrous outcome for decades of efforts by researchers. India must break free from its role as a passive buyer of foreign technology standards and start shaping its own destiny. With R&D spending languishing under 1% of GDP, domestic funding constraints remain a formidable barrier. Yet innovation favours foresight: We sit in the shade today because others planted trees long ago. India must pioneer its IP-led global standards that power its people.
Ashish Bharadwaj writes on higher education, technology, and patents. Insiyah Vahanvaty is a socio-political commentator and author of ‘The Fearless Judge’. The views expressed are personal
