CCI’s Traditional IP Approach vs. Lina Khan’s Disruption: A Comparative Commentary

"Every patent is the grant of a privilege of exacting tolls from the public."– Justice Hugo Black's dissent in United States v. Line Material Co., 333 U.S. 287 (1948).

Introduction

In today’s digital epoch, the traditional boundaries between Intellectual Property (“IP”) and Competition Law are becoming significantly porous. While IP laws bestow exclusionary rights for incentivising innovation, these rights are increasingly used as instruments for market entrenchment, algorithm enclosure, and interoperability denial, more so by dominant digital platforms. This essay examines the transformative role of former Federal Trade Commission (hereinafter “FTC”) Chair Lina Khan towards the intersection of Intellectual Property and antitrust enforcement. Further, the essay evaluates how FTC has moved beyond traditional frameworks to IP rights, especially platform-oriented markets. This is juxtaposed with Competition Commission of India’s (“CCI”) response to similar challenges with a more cautious and reactive regulatory approach. 

While Lina Khan’s departure from traditional docility to IP monopolies, which reconceptualizes IP not just as rights, but rather as a tool for structural exclusion in digital platform ecosystems. During her tenure at the FTC, a paradigm shift was observed in antitrust enforcement marked by a move away from the narrow consumer-welfare standard to a structuralist approach that examines the inherent asymmetry of power in the digital ecosystem. This can be alluded to historic and landmark actions, like the FTC’s suit against Amazon which signalled Khan’s willingness to reconceptualize IP rights as not sacrosanct but as a tool of exclusion and foreclosure. On the contrary, the CCI, while increasingly active in digital markets, is mired with doctrinal constraints. High profile cases such as Google Android and Ericsson v. Micromax show  the awareness of market abuse, that is, through bundling and pre-installation conditions. However, the Commission has largely recused itself from challenging the structural role of IP itself. Section 3(5) of the Competition Act, 2002 presumes IP to be legitimate unless proven otherwise. This limits the proactive inquiry into whether certain uses of IP serve as anti-competitive. 

Key Words: CCI, Lina Khan, FTC, IP, Jurisdiction, Disruption

Lina Khan: A Disruptor

With the rise of digital platforms, traditional assumptions about market power, access, and innovation have been destabilized. Disparate to the industrial age, where scale was achieved through labour and capital, in the age of platform economy scale is achieved through data control and system lock-in. The lock-in business pattern is a strategy wherein a company creates an environment that makes it difficult for consumers to switch to a competitor’s business or service. IP rights are not just being used to incentivize innovation but also to restrict interoperability, engaging in self-preferencing, and denying fair access to developers or competitors. Patent thickets, trademark gatekeeping, and algorithmic secrecy function less like  innovation incentivization and more like regulatory moats.

Enter Lina Khan who was nominated by President Biden in 2021 as the youngest chair of the FTC at 32. Khan’s FTC made departure from decades of antitrust orthodoxy, especially in relation with IP. FTC under Khan breaks from the Borkian consumer-welfare traditions that view IP not as sacred but as a possible tool for misuse where the winner-takes-it-all. Judge Robert Bork, part of the Chicago School of Economics, wrote in his 1978 book  “The Antitrust Paradox"  that protecting consumer welfare should be the sole and ultimate goal of antitrust laws. This solitary target almost leaves behind focus on competitor and market structure. This has been significantly criticised by Lina Khan in her seminal Yale Law Journal paper  “Amazon's Antitrust Paradox". Khan contends that the current framework in antitrust is not equipped to capture the architecture of market power. Like the time when FTC joined 17 states and filed a sweeping lawsuit  against Amazon in the US District Court for the Western District of Washington, Seattle (2023). FTC is said to have stated that Amazon "extract enormous monopoly rents from everyone within its reach". While the suit was not necessarily centred around traditional IP, it gave headwinds to IP-Competition dynamics. It highlighted self-preferencing as IP-style gatekeeping, where the use of IP degrades competitors’ visibility and resembles IP-driving locking such as weaponized Application Programming Interfaces (APIs). Another antitrust blind spot in IP licensing is information asymmetry. We see Khan’s concern here is palpable vis-à-vis the opacity of fee structures and seller algorithms which mirrors this blind spot. In her article, "The Separation of Platforms and Commerce"  she asserts that the dominant platforms use structural opacity to deny their counterparts any meaningful bargaining powers. Khan warns that siloed forums allow tech companies forum-shopping and thus, delay accountability. Under her leadership, FTC treated IP not as insulated from anti-trust simply  because it’s a legal right. If IP results in market foreclosure, collusion, or unfair methods of competition, they invite  action. 

CCI and IP Jurisdiction

The interface between IP and competition law in India presents a unique regulatory terrain, shaped by the country’s economic positioning as a predominantly technology-importing market. Unlike jurisdictions where IP rights are often accorded presumptive deference as natural monopolies justified by innovation incentives, Indian competition law approaches IP as a qualified entitlement over formalistic reliance. This means Indian competition law does not treat the mere existence of IP rights as determinative, rather it evaluates whether the manner of their exercise results in market foreclosure, consumer harm, or barriers to entry.  This contextual reality renders the IP-antitrust relationship in India particularly distinctive and warrants closer analytical attention.   

However, CCI’s relatively underarticulated jurisprudence on the tension between IP and antitrust enforcement presents a growing number of abuse-of-dominance  complaints in platform-based and technology-driven markets. Notably, section 3(5) of the Competition Act, 2002 carves the IP exception clause. It states that “Nothing contained in this section shall restrict the right of any person to restrain any infringement of, order to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under the [IP statutes].” This implies that IP rights holders are allowed to impose restrictions that might otherwise be considered anti-competitive but only when those conditions are "reasonable"  to protect the IP. This leaves scope for ambiguity especially when it can be weaponized by dominant pharmaceutical and technology sector firms. Rather than granting blanket immunity to IP holders, Section 3(5) establishes a conditional safe harbour, subjecting IP-based restrictions to scrutiny. This formulation embeds competition oversight within the IP exception itself, signalling legislative intent to prevent the instrumentalization of IP rights as a shield for exclusionary conduct. where IP ownership may confer substantial market power capable of distorting downstream competition. 

Back in 2022, Competition Commission of India (CCI)’s decision in  Re: XYZ v. Google LLC marked a landmark development. The key findings by the CCI included Google to be dominant position in the relevant markets for licensable smart mobile OS.  Android is an open source software [or available open source] and Google’s proprietary control over the Google Play Store and Google Mobile Service (GMS) bundle gives it significant leverage. This control forms the basis for its ability to impose unhindered terms on app developers and device manufacturers.

Section 3(5) has scant jurisprudence and when compared with Khan’s approach shows how regulators are left flat-footed. As observed by Lina Khan, regulatory regimes often struggle not because of bad laws, rather as they cling onto the outdated paradigms in the face of architectural shifts in market power. In this sense, Ericsson v. Micromax is another such landmark dispute that demonstrated that section 3(5) operates not as an absolute exemption but as a conditional defence subject to competitive effects and market power. 

The doctrinal passivity of CCI’s IP jurisdiction under Section 3(5) is in juxtaposition with US FTC which under Lina Khan moves towards a functional effect-based analysis. As observed in UnitedHealth-Change merger (2022) and Nvidia-Arm merger (2022, opposed), Khan’s FTC scrutinized the effect of control of IP on dependencies and long-term innovation. The Indian framework lacks any such forward looking anticipation. Courts often restrict CCI jurisdiction in deference to IP bodies, like the Delhi High Court did in the Ericsson v. CCI, thereby creating an artificial barrier between innovation and competition law analysis.

Conclusion

In concurrence with the stated arguments, it becomes important that India’s Competition-IP policy must adapt to platform globalization.  Today, IP operates beyond the limits of national markets and can no longer be viewed as an exclusive domestic right. For instance, global licensing pools dictating access terms like in Avanci for 5G. Additionally, as observed, jurisdictional arbitrage allows firms to exploit forum asymmetries.

The FTC under Khan had swiftly responded to these contingencies by asserting extraterritorial scrutiny, especially foreign mergers with domestic spillover. Her tough decision-making capabilities were heralded as an antitrust revolution. By contrast, India’s CCI remains majorly inward looking and legally constrained by territorial doctrines. To this effect, recently CCI signed MoUs with various competition authorities in Egypt, Mauritius, Japan, Brazil, Canada, Australia, the European Commission, and the United States Department of Justice (DOJ) which will assist it in understanding foreign regulatory approaches. 

There is a need to rethink our approach to appreciate that IP is neither inherently pro-innovation nor is it always competition free. This helps us understand the difference in the framework of both CCI and FTC under Lina Khan towards IP. As the world of innovation becomes more entangled and nuanced, and patents become the new toll gates to its access,      the question is not whether IP and Antitrust can coexist, but rather whether Competition Law can give rise to the challenge of ‘disciplining’ innovation monopolies in an age where IP serves as an infrastructure. 

About the Author

2nd year BA.LL.B Student at Institute of Law, Nirma University (ILNU)