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Predatory pricing, or pricing below costs in order to drive out one or more rival firms, has a long and convoluted history in both economic theory and antitrust/competition jurisprudence. This already contentious issue has become even more complicated in the context of the new business models, largely based on information and communications technologies (ICT), that come under the rubric of ‘two-sided platforms’. In this chapter, the author first provides a non-technical introduction to the economics of predatory pricing, showing why scholars and competition agencies in the United States and European Union became increasingly sceptical of the feasibility of such a business strategy. The author shows how India’s old Monopolies and Restrictive Trade Practices (MRTP) Act of 1969 remained oblivious of these developments, and how despite several improvements, the poor drafting of the relevant sections of the 2002 Competition Act creates some unnecessary complications. Further, the author provides a non-technical introduction to the economics of platforms, with several examples that are familiar in the Indian context. Implications are derived for the antitrust treatment of predatory pricing. Finally, he discusses how the Competition Commission of India (CCI) has dealt with some of these issues, in recent cases which have involved allegations of predatory pricing against the app-based taxi aggregators Ola and Uber, whose rivalry exemplifies platform competition.

Several cases pertaining to standard essential patents (SEPs) and fair, reasonable, and non-discriminatory (FRAND) commitments filed with the Competition Commission of India (CCI) raise a pertinent issue on whether companies promoting innovation are able to exert monopoly power. As amongst the first cases in India pertaining to SEPs, arguments of monopoly power of a patent owner is compelling. The reference point is the case involving where royalty payment pertaining to licensing of SEPs were considered. The chapter addresses two basic but interlinked issues pertaining to monopolization: Are SEPs prima facie dominant and whether dominance leads to a per se inference of abuse. Licensees preferring Section 4 of the Competition Act instead of Section 3(4) relating to anti-competitive agreements raise critical issues. First, the inference that SEP licensors are dominant does not stand the scrutiny based on available evidence. Second, prevalence of competition among both parties does not permit a per se inference of abuse of dominance. Third, assertion of monopoly power by companies promoting innovation based on their licensing agreement stands on weak logic. The chapter identifies and highlights some of the critical misconceptions pertaining to SEPs and FRAND.

The digital payments sector, especially after demonetisation, has seen an exponential spurt in growth. However, most of the growth has been witnessed in the mobile wallet segment of the digital payments market. The issue however, is whether these mobile wallet companies can sustain this quantum of growth in the face of innovative digital payment instruments that have been unveiled by banks in India. This chapter seeks to examine whether mobile wallet companies can successfully compete with banks when they are denied access to critical interoperability infrastructure that is currently under the proprietorship of banks. While examining this, various antitrust issues will be looked into, but, more substantively, this chapter will delve into whether mobile wallet companies can resort to the invocation of the Essential Facilities Doctrine in trying to secure access to such interoperability infrastructure and how this interacts with the intellectual property rights of the banks.

This chapter makes an attempt to view the essential facilities doctrine (EFD) through transaction cost lens. Through narrating the evolution of the doctrine in the US (and subsequently in the EU), the authors have observed the divergent interests of the judiciary in the two regions. They have located the doctrine’s presence in Indian case laws, identified the problems therein (particularly in cases involving intellectual property) and have proposed that the doctrine’s construction in India should be guided by the EU model. To build this case, the authors have situated the doctrine in property-liability framework and invoked the concepts of transaction costs and bargaining power to guide their choices. The authors have concluded that societies characterised by a weak intellectual property regime (and hence high transaction costs) should adopt a more liberal approach towards EFD. They show that India is indeed, one such society.

A country’s patent system plays a significant role in the progress it makes in relation to technological innovations. Yet, from a developing country’s perspective it is necessary to ensure that the grant of patent rights promotes local interests, and in particular the transfer of technology to foster domestic industries and promote local innovations. However, where the grant of a patent results in the patented product being solely imported into the territory of a country in which patent rights subsist, there is little benefit for the patent granting country. It is for this reason that the incorporation of a local working requirement—compelling the local manufacture of a patented product—for the grant and maintenance of patent rights could be beneficial to a patent granting country. Yet adopting such an approach to formulate domestic patent legislation is not without controversy. Although Article 5A(2) of the Paris Convention for the Protection of Industrial Property 1883 (Paris Convention) provides that a compulsory license may be issued where there is a failure to work a patent, the Paris Convention permitting the term ‘working’ to be defined as requiring local manufacture of a patented product, Article 27:1 of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) provides that patent rights must be made available without discrimination as to the place where a patented product is produced. This chapter explores the tension between Article 27:1 of TRIPS and Article 5A(2) of the Paris Convention and suggests how TRIPS flexibilities may be used in favour of imposing a local working requirement under domestic patent law, while also considering the approaches adopted in relation to local working requirements in two South Asian jurisdictions—namely, India and Sri Lanka.