Fact: NCLAT Case: Mr. Swapan Dey Vs Competition Commission of India
The appellant, Mr. Swapan Dey, is a hospital CEO providing free dialysis services under the Pradhan Mantri National Dialysis Programme, who approached the Competition Commission of India alleging anti-competitive conduct by Vifor International AG concerning Ferric Carboxymaltose (FCM) injection used to treat iron deficiency anaemia common in dialysis patients and vulnerable populations, asserting that Vifor’s licensing and market practices made FCM inaccessible and unaffordable in India.
Vifor, a Swiss company, held an Indian patent on the FCM molecule granted on 25.06.2008, which expired on 21.10.2023, and the company had entered into licensing arrangements with Indian pharmaceutical companies including Emcure Pharmaceuticals (manufacturing) and Lupin Ltd. (import and distribution), with the appellant alleging limited production, control, and discriminatory pricing. The appellant claimed contraventions under Sections 3 and 4 of the Competition Act, 2002 on the basis that Vifor’s arrangements and conduct restricted supply, involved abuse of dominance, and discriminated on pricing between public procurement and private markets, thereby harming patients’ access to essential therapy.
Procedural Detail
The appellant filed information before the Competition Commission of India on 12.01.2022 in Case No. 05 of 2022 alleging violations under Sections 3 and 4 of the Competition Act by Vifor, which the CCI closed at the prima facie stage by order dated 25.10.2022 under Section 26(2) of the Act, concluding that there was no requirement to define a precise relevant market or assess dominance, and finding no prima facie contravention.
The CCI’s order reasoned that:
- Vifor’s limited-term licences with Emcure and Lupin contained reasonable IP-protective conditions.
- The agreements did not foreclose competition or restrict inter se competition between licensees.
- No long-term exclusionary effects were found.
- Patent expiry in 2023 would open the market.
- Price differentiation between public procurement and private retail could be benign.
Aggrieved, the appellant filed the present appeal under Section 53B of the Competition Act before the NCLAT, where CCI supported its jurisdiction and merits closure with reference to Delhi High Court’s Monsanto 2020 decision, while Vifor challenged maintainability, asserted lack of CCI jurisdiction due to the Patents Act being a special code, and pointed out patent expiry and alleged forum shopping by the appellant.
Dispute
The core dispute was whether the Competition Commission of India had the power to inquire into and decide allegations of anti-competitive agreements and abuse of dominance relating to licensing and supply of a patented drug when the conduct arose in the exercise of statutory rights under the Patents Act.
The connected issue was whether, even if the CCI had jurisdiction, the impugned order closing the case at the prima facie stage for want of contravention required interference in appeal, in light of the licensing terms, market structure, alleged price discrimination, and patent expiry changing market dynamics. Finally, the tribunal had to consider the effect of the Delhi High Court Division Bench decision in Telefonaktiebolaget LM Ericsson PUBL v. CCI, 2023 SCC OnLine Del 4078, and the Supreme Court’s subsequent disposal of CCI’s SLP on 02.09.2025, on the jurisdictional relationship between the Competition Act and the Patents Act.
Detailed Reasoning
Tribunal Findings
The tribunal recorded that the CCI examined the matter within its statutory confines and closed it at the threshold under Section 26(2), finding no prima facie contravention of Sections 3 and 4, especially in view of licensing agreements, absence of foreclosure, inter se competition, and impending patent expiry.
Licensing and Market Conduct Analysis
- Vifor’s licences with Emcure and Lupin were time-bound and lacked unilateral anti-competitive restraints.
- No entry barriers existed for other producers of soluble iron injectables.
- Not all price differentiation is discriminatory, especially when justified by bulk procurement for public purposes.
Jurisdictional Issue
The tribunal noted appellant’s criticism regarding lack of market definition and dominance analysis, but emphasized that the decisive issue was jurisdictional primacy where patent rights are involved. Referring to Monsanto Holdings Pvt. Ltd. v. CCI (Delhi High Court, 2020), it was noted that Section 3(5) of the Competition Act does not oust CCI’s jurisdiction merely because IP is involved. However, the later Ericsson Division Bench decision held that the Patents Act is a special and subsequent code prevailing over the Competition Act.
Ericsson Reasoning and Supreme Court’s View
The tribunal adopted the Division Bench’s reasoning that inquiries by the CCI into licensing conditions mirror the inquiries under Chapter XVI of the Patents Act, which already provides remedies for abuse of patent rights. Therefore, the Patents Act, being the special and later legislation, overrides competition law in such matters.
The Supreme Court’s disposal of the CCI’s SLP (No. 25026/2023) on 02.09.2025, while keeping questions of law open, was treated as affirming the Delhi High Court’s operative conclusions for current purposes.
Statutory Framework
The tribunal emphasized:
- Section 3(5) of the Competition Act protects patentees’ right to impose reasonable conditions to protect IP rights.
- Sections 83, 84, 88, 89, and 90 of the Patents Act collectively balance innovation incentives, access, and public interest through mechanisms like compulsory licensing.
Factual Context
Vifor’s patent expired on 21.10.2023, placing FCM into the public domain, diminishing competition law concerns. The CCI had already considered the limited nature of licences and absence of foreclosure. Price differences in procurement versus retail markets were justified; cross-country comparisons were unreliable due to differing fiscal regimes.
Tribunal’s Conclusion
The tribunal concluded that guided by the Delhi High Court’s Ericsson decision and Supreme Court’s non-interference, the CCI lacks power to examine the allegations, as they arise from the exercise of patent rights governed by the Patents Act. Hence, the appeal was dismissed.
Judgment
| Case Title | Mr. Swapan Dey Vs Competition Commission of India |
|---|---|
| Order Date | 30.10.2025 |
| Case Number | Competition Appeal (AT) No. 5 of 2023 |
| Name of Court | National Company Law Appellate Tribunal |
| Name of Hon’ble Bench | Justice Yogesh Khanna and Mr. Ajai Das Mehrotra |
Decision
The appeal was dismissed with no order as to costs, and pending applications were closed, thereby affirming the CCI’s order dated 25.10.2022 closing the information under Section 26(2) of the Competition Act.
Disclaimer
The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.
Written By
Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi.
