CCI Jurisdiction Over Patent-Related Anti-Competitive Conduct
Introduction : Whose Turf Is It Anyway? The Supreme Court, the CCI, and the Unsettled Boundary Between Patent Law and Competition Law.
Every patent is, by design, a state-sanctioned monopoly; the law grants an inventor the exclusive right to exploit their invention precisely so that others cannot. Competition law exists to police the abuse of monopoly power. The two regimes were bound to collide, and in India that collision has produced one of the most unresolved jurisdictional puzzles in the country’s economic law: when a patent holder’s licensing conduct starts to look anti-competitive, does the Competition Commission of India (CCI) get to investigate it, or does the Patents Act, 1970 occupy the field entirely, leaving the Controller of Patents as the only competent authority?
It sits at the heart of standard-essential patent (SEP) licensing disputes that have shaped India’s telecom and electronics manufacturing sectors, and it now extends into pharmaceutical patents, where licensing and pricing decisions affect access to essential medicines. Get the answer to this jurisdictional question wrong, and either innovators lose meaningful protection against a second layer of regulatory second guessing, or implementers and the public lose a powerful, deterrence backed check on the abuse of patent monopoly power.
For over a decade, Indian courts have circled this question without quite landing on a final answer swinging from recognising CCI jurisdiction, to excluding it, to now, in early 2026, having the Supreme Court step back in and stay a National Company Law Appellate Tribunal (NCLAT) ruling that had all but ousted the CCI from this space. That intervention is a good occasion to trace how the Court’s approach has evolved, what it means for licensing restrictions and abuse of dominance claims, and what patent owners and implementers should be doing about it right now.
The Statutory Fault Line
The tension traces back to two provisions that were never quite reconciled by Parliament.
Section 3(5) of the Competition Act carves out an exception for “reasonable conditions” imposed by an IP holder to protect rights conferred under statutes like the Patents Act. This exception is not absolute; it protects reasonable restrictions, not any restriction dressed up as IP protection but it has become the textual anchor for arguments that patent licensing sits outside competition law’s reach.
Meanwhile, Chapter XVI of the Patents Act (inserted by the 2003 amendment) creates its own machinery for anti-competitive licensing: compulsory licensing under Section 84, revocation for non-working, and controls over restrictive conditions in licence agreements under Sections 140 and 84(7). Because this chapter is both later in time and more specific in subject matter, patent holders have argued it should prevail over the general provisions of the Competition Act, invoking two familiar interpretive maxims generalia specialibus non derogant (special law prevails over general law) and lex posterior derogat priori (later law prevails over earlier law).
The CCI’s position, unsurprisingly, is the opposite: that the Competition Act’s Section 60 gives it overriding effect notwithstanding anything inconsistent in any other law, and that patent rights are a legitimate market position that can nonetheless be abused like any other form of dominance.
Supreme Court’s morphing on their approach.
Commander for Communications and Information has jurisdiction over Micromax and Ericsson (2013-2016). The issue was first raised by Micromax and Intex against CCI, stating that Ericsson’s SEP licensing fee was an abuse of dominance due to the fact that the fees were on the basis of the price charged for the entire downstream device, the SEP technologies costs being calculated on the price of smallest patented technology, and posed threat of injunction to compel acceptance of the SEP. Ericsson appealed against the jurisdiction of CCI before the Delhi High Court. Finding that there was no bar to an investigation by the CCI against Ericsson, a single court in the Delhi high court in 2016 held that the Patents Act and the Competition Act can co-exist: the CCI and Controller of Patents provide remedies for different mischiefs; if one present, the other is not taken away for lack of it.
Well, Monsanto: the same business model used for agri biotech. In a parallel dispute concerning Monsanto’s Bt cotton technology licences, they came up with very similar ideas the CCI’s authority to rule on a potentially broad questions about whether the licensing conditions were denying its competitors was set aside from the Controller of Patents’ power to consider a narrow question of whether compulsory licences could be granted.
The 2023 reversal. The peaceful state of affairs went on no longer. A Division Bench of the Delhi High Court, who were hearing Ericsson and Monsanto cases together in July of 2023, got the opposite verdict. It had the view that the specialised complete code on tackling patent misuse by the patent holders, which was enacted later in the Patents Act, namely Chapter XVI, took the place of Chapter III of the ARJIT and must accordingly be considered by the Controller of Patents and not the CCI when determining the reasonableness of the SCCT terms including royalty terms. The decision has effectively pushed the CCI aside from SEP and patent licensing cases, bringing to a halt much as many thought was the last time the matter came up in a 2016 case.
Bharti Airtel (2019): a template to CAUTION. The decision of the Supreme Court in CCI v. Bharti Airtel is cited in this case as frequently and often as it is in the patent case, as it involves the same jurisdictional issue of how to distinguish between two regulators, one sectoral (TRAI) and one functional (CCI). The Court went on to observe that in a dispute, where the determination of some threshold points is entangled in technical & contractual issues of TRAI’s special competence, the CCI should first resort to TRAI for resolution. The patent holders are looking toward this precedent to urge a similar ‘specialised regulator first’ ruling when it comes to patent regime CCI and implementers note that the case of Bharti Airtel was one of ‘sequence’ and not ‘ouster’.
Samir Agrawal (2020): a reminder of why the CCI is there. In this instance the Supreme Court has termed the CCI proceedings inquisitorial, looking for the public interest, rather than private litigious action seeking private redress, nothing more than an informer who initiates a market-wide probe. This argument has since been raised against the parties who had proposed allowing a private settlement between patentee & complainant to end the duration of the competition inquiry in JCB India v. CCI (2024) before the Delhi High Court. Licensing disputes might be venal enough to be avoided by side deals so that if an investigation is triggered there is no actual anti-competitive product or process market behavior.Licensing disputes can be sufficiently “venal” for sophisticated “Patentees” to be dealt with by side deals, which are covered by the CCI, and then withdrawn on terms favorable to the licensor, without an actual anti-competitive product or process market behavior (if the investigation is triggered).
The Supreme Court granted a stay to the case of Swapan Dey against CCI in 2026. Now the issue is a grievance regarding the patented iron-deficiency drug, ferric carboxymaltose (FCM) by Switzerland’s Vifor International. The complainant claimed that Vifor exercised an abuse of dominant position in its activities of licensing, pricing and supply of FCM in relation to the marketing of and access to it in the territory of Belgium. The CCI previously shut down the case on the ground of failure to establish a prima facie case (a decision on the merits) whereas on appeal, the NCLAT supported the Delhi government’s reasoning, with no discussion of the 2023 Delhi HC judgment, and a categorically that the CCI has no jurisdiction whatsoever over anti-competitive conduct arising from the exercise of patent rights under Section 3(5).
A bench of Justice J.B. Pardiwala and Justice Vijay Bishnoi of the Supreme Court set aside the operative jurisdictional findings of the NCLAT order, and restricted the appeal to a single question what is the extent of the power of the CCI under the competition act when the grievance is against refusal due to the exercise of patent rights? Notably, the Court did not go into any issues and did not overturn the underlying finding by the CCI in the Vifor case, as the stay pertains to jurisdiction, and not the merits.
The Supreme Court concurrently addressed the long drawn out case of CCI v Ericsson (xor case) which had been pending for almost a year and in absence of a determination by the Supreme Court on the jurisdictional issue, is said to have settled the case as the previous time when the judge did not adjudicate on the issue, the litigants settled the matter. Together, the pattern is clear: the Supreme Court has consistently declined to make a sweeping, final ruling, but a decision of the NCLAT that patents should be a category that should not be examined for competition appears to create a discomfort for the apex court that wants only “inevitable gratification” prevented from competition scrutiny. The “developing approach” can best be seen as “cautious non-foreclosure” an approach through which the door remains open for the CCI scrutiny of such conduct, and one in which the doctor is not ready to enunciate any definite doctrinal answer until an instance compels him to do so.
Competition-Law Risk Assessment
The current exposure of royalty calculations based on the price of the downstream product (and not the smallest patented component) is relatively low. It has been repeatedly accepted by the Delhi High Court that this methodology is in line with the accepted practice in the world and whatever the final resolution of the jurisdictional issue, it does not seem likely to throw it up on appeal before the Supreme Court.
The discriminatory licensing terms offered to similarly placed implementers would be in a similar risk band but in this instance the outcome would be more directly linked to the analysis of the jurisdictional question, with the result that, if CCI jurisdiction is maintained, this would be on its purview, and, if the Patents Act does occupy the field, the burden would fall on the more limited scope of the Controller of Patents.
Refusals, tying and bundling which are the three practices that are already in a uniquely liminal space are exposed directly depending on the Supreme Court’s verdict in the Swapan Dey appeal.
The conflict over patent jurisdiction is just one of the many price- and supply-related challenges that patented essential medicines pose, regardless of the outcome of the SEP-specific jurisdictional dispute. A public-interest aspect of access to essential medicines will keep coming up for complaint and regulatory scrutiny, no matter which forum turns out to be competent, as the Vifor/FCM matter shows.
Last but not least, patent owners should not take it for granted that making a settlement with a complainant will mean that the CCI inquiry is gone. The Supreme Court’s reasoning in Samir Agrawal – that the CCI proceedings are inquisitorial and serve the public interest and not a private litigation – has already been cited to oppose such de facto “private litigation” and courts seem more vigilant in understanding the possibility of “tactical litigation” to achieve a better deal before the CCI complaint is issued with a view to its withdrawal.
The one big thing that anyone ought to be concerned with at the moment is the overall uncertainty. The Supreme Court’s stay order in the Swapan Dey appeal does not validate the NCLAT’s order finding the CCI did not have jurisdiction over patent related actions but just temporarily keeps the current, operative position in place, meaning the CCI can go ahead with investigations. Those who adopt the attitude that the standard they are imposing on themselves under Section 3(5) or Chapter XVI of the Patents Act amounts to blanket immunity from competition analysis are thereby putting themselves on a collision course with the possibility of real liability in the future, should the Supreme Court determine that it does not.
Conclusion
This dance over a ten year period brings forth two clear, and mutually conflicting, visions of how India will police patent excesses one based on a specialised patent regime, another on a general competition regime with broader powers and a public-interest mandate. So far the Supreme Court has stayed neutral in deciding they settled Ericsson without any opinion on merits; and in Swapan Dey, limited its intervention to the issue of jurisdiction in 2026. But the failure to challenge the NCLAT’s exclusionary finding is also a message: in a way, the Court hasn’t yet said it outright, but patent rights are not yet ready to be a categorical barrier to antitrust review.
Author:- Manjari Vaishnav, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
References
- https://www.courtkutchehry.com/pages/blog/supreme-court-cci-patent-disputes-competition-law-jurisdiction/
- https://lawchakra.in/supreme-court/cci-jurisdiction-patent-competition-law/
- https://knallp.com/navigating-the-jurisdictional-tug-of-war-between-the-cci-and-the-patents-act/
- https://www.livelaw.in/articles/cci-swapandey-nclat-523291
- https://globalcompetitionreview.com/hub/sepfrand-hub/2025/article/india-seps-and-frand-litigation-policy-and-latest-developments
- https://www.lexology.com/library/detail.aspx?g=5f1e0edc-d60b-4695-b0ba-1c00beeeaf37
