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Introduction
Patent law and competition law often pull in different directions. Patents grant inventors exclusive rights over their inventions, while competition law seeks to prevent monopolies and ensure fair market practices. When these two regimes overlap, courts are faced with the difficult task of deciding which law should prevail. The case of Swapan Dey v. Competition Commission of India and Vifor International (AG) is a striking example of this tension. It concerned allegations that a pharmaceutical company’s licensing practices made a vital drug unaffordable and inaccessible. The matter eventually reached the National Company Law Appellate Tribunal (NCLAT), which had to decide whether the Competition Commission of India (CCI) had jurisdiction to examine alleged anti-competitive conduct when the subject matter was a patented drug.
Facts of the Case
Vifor International, a Swiss pharmaceutical company, developed the molecule Ferric Carboxymaltose (FCM), which is used in injections to treat iron deficiency anaemia. In 2008, Vifor was granted a patent in India for FCM. To market the drug in India, Vifor entered into licensing agreements with two companies: Emcure Pharmaceuticals Ltd., which was authorised to manufacture FCM injections, and Lupin Ltd., which was authorised to import and distribute them.
In January 2022, Swapan Dey, the CEO of a hospital providing free dialysis services under the Pradhan Mantri National Dialysis Programme, filed information before the CCI. He alleged that Vifor’s conduct amounted to abuse of dominance and anti-competitive behaviour under Sections 3 and 4 of the Competition Act, 2002. His complaint was that the licensing arrangements restricted supply and kept prices high, making the drug inaccessible to patients who needed it.
The CCI examined the matter but, in October 2022, dismissed the complaint under Section 26(2) of the Competition Act. The Commission held that there was no prima facie violation. It reasoned that there was no need to define a precise relevant market or assess Vifor’s dominance. The licensing agreements did not appear one-sided or unreasonable. Price differences were not necessarily discriminatory, especially when based on reasonable classifications such as bulk government procurement versus private retail sales. The Commission also noted that the patent was due to expire in 2023, after which the drug would be freely available.
Swapan Dey appealed to the NCLAT in 2023 under Section 53B of the Competition Act, challenging the CCI’s order. By the time the appeal was heard, Vifor’s patent had expired in October 2023, and FCM had entered the public domain.
Arguments in Favour
The appellant, Swapan Dey, argued that the Competition Commission of India had erred in dismissing his complaint. His position was that the Commission failed to properly examine the relevant market and assess whether Vifor International held a dominant position. By restricting production and distribution of Ferric Carboxymaltose (FCM) injections to only two licensees, Vifor had effectively limited supply, which in turn harmed accessibility and affordability for patients. This, he claimed, amounted to abuse of dominance under Section 4(2) of the Competition Act, 2002.
He further contended that the Commission wrongly adopted an ex-ante approach, looking forward to what might happen after the patent expired, instead of conducting an ex-post analysis of the actual effects of Vifor’s conduct during the life of the patent. According to him, the licensing arrangements were not designed to promote competition but to maintain control over the market. The limited production of FCM injections, despite high demand, demonstrated anti-competitive behaviour that should have been addressed under Sections 3 and 4 of the Act.
In essence, the appellant’s case was that the Commission had failed to protect consumers and patients from restrictive practices, and that the law required a deeper inquiry into whether Vifor’s conduct had created barriers to access and affordability.
Arguments Against
Vifor International, the respondent, challenged both the maintainability of the appeal and the jurisdiction of the CCI. It pointed out that the patent on FCM had expired in October 2023, meaning the drug had entered the public domain and could be freely manufactured and sold by any company. This, in its view, made the appellant’s grievance largely academic.
The company argued that the production and licensing of FCM were governed by the Patents Act, 1970, not the Competition Act. It relied on Section 83 of the Patents Act, which sets out general principles for working on patented inventions, including that patents should promote innovation, public health, and affordable access. It also referred to Section 84, which allows compulsory licensing if public requirements are not met or prices are unaffordable. These provisions, it said, provided the proper framework for addressing concerns about accessibility and affordability.
Vifor also emphasised Section 3(5) of the Competition Act, which exempts reasonable conditions imposed by a patent holder to protect its rights. On this basis, it argued that the CCI had no jurisdiction to interfere with licensing arrangements that were lawful under patent law. The respondent maintained that its agreements with Emcure and Lupin were reasonable, limited in duration, and did not restrict competition beyond what was necessary to protect its patent rights.
The CCI itself supported this position, noting that its jurisdiction was not ousted merely because the matter involved patents, but acknowledging that the Delhi High Court’s Division Bench in Telefonaktiebolaget LM Ericsson v. CCI (2023 SCC Online Del 4078) had clarified that the Patents Act is the special statute governing such matters.
Court’s Decision
The NCLAT dismissed the appeal, holding that the Patents Act prevails over the Competition Act in matters concerning the exercise of patent rights. It relied heavily on the Delhi High Court Division Bench judgment in Telefonaktiebolaget LM Ericsson v. CCI (2023 SCC Online Del 4078). The High Court had held that Chapter XVI of the Patents Act, which deals with compulsory licensing and related issues, is a complete code for addressing unreasonable licensing conditions and abuse of patent rights. The inquiry proposed by the CCI was nearly identical to the inquiry the Controller of Patents is empowered to conduct under Sections 83 to 90 of the Patents Act. Applying the principle generalia specialibus non derogant, meaning general law does not override special law, the High Court concluded that the Patents Act, being a special statute, must prevail over the Competition Act.
The Delhi High Court’s 2020 decision in Monsanto Holdings Pvt. Ltd. v. CCI had initially held that the CCI could examine competition issues in patent licensing. This was later overturned by the Division Bench in Telefonaktiebolaget LM Ericsson v. CCI in 2023, which held that the Patents Act is the special statute governing such matters and overrides the Competition Act. The Supreme Court affirmed this position in September 2025 when it dismissed the CCI’s appeal in SLP No. 25026 of 2023. The Court noted that once the patent had expired and the original complainants had no further grievance, there was no reason to interfere with the High Court’s judgment. However, the Supreme Court kept the questions of law open, meaning that the broader issue of jurisdiction could be revisited in future cases.
The NCLAT observed that since Vifor’s patent had expired in October 2023, FCM had entered the public domain and could be freely manufactured and sold by any company. This made the appellant’s grievance largely academic. Following the judicial guidance of the Delhi High Court and the Supreme Court, the Tribunal concluded that the CCI lacked the power to examine the allegations against Vifor.
Conclusion
The case of Swapan Dey v. CCI and Vifor International illustrates the delicate balance between patent rights and competition law. While competition law seeks to prevent abuse of dominance and ensure fair markets, patent law provides a specialised framework for regulating patent rights, licensing, and compulsory licences. The NCLAT, guided by the Delhi High Court and the Supreme Court, concluded that the Patents Act prevails when the dispute concerns the exercise of patent rights.
For patients and healthcare providers, the expiry of the patent in 2023 meant that FCM injections became freely available, resolving the immediate concern of accessibility. Yet the broader legal question of how to balance patent rights with competition law remains open. Future cases may revisit this issue, but for now the courts have made it clear: when it comes to the exercise of patent rights, the Patents Act is the governing statute, and competition law must yield.
