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4.54 It has been submitted that the SDK, the underlying software, the source code, etc., are the IPR of the Opposite Party No. 1. Restriction on sub-licensing to „third parties‟ in a license agreement cannot be considered unreasonable, since the very essence of an IP right is the right to determine to whom the IP and the manner in which it is licensed. In cases of third party use of its IP, the Opposite Party No. 1 requires such third party to enter into an SDK license agreement with it since, if a third party were to steal/misappropriate its IP, the Opposite Party No. 1 would have no recourse to contractually enforce its IP rights over the third party or cure the breach. Only if there is an executed SDK license agreement between the Opposite Party No. 1 and the third party, the Opposite Party No. 1 would be able to directly enforce its IP rights vesting in its SDK.

6.24 However, the Opposite Party No. 1 has opposed the above findings of the DG on the grounds, inter alia, that the terms and conditions of 2012 draft SDK license agreement are less stringent compared to SDK license agreements in the smart phone industry and it is a standard business practice; it does not unreasonably restrict the development on VAS on managed Terminals; minimal disclosure under „Exhibit C‟ of the draft SDK agreement cannot amount to an abuse of dominance and limited disclosure requirement is not a restriction; its business model in India is not comparable to SDK licensing arrangements in other parts of the world; modification/developments cannot be made to the core functionality of devices as in the SDK license agreements for smart phones; Ingenico‟s SDK license agreement and its 2012 draft SDK license agreement operate on completely different business models hence are not comparable; and the SDK, the underlying software, the source code, etc., are its intellectual property rights, etc. 6.25 The Informant on the contrary contended, inter alia, that the some terms and conditions of the SDK agreements are abusive in contravention of the provisions of section 4 the Act, as revealed from the DG investigation. As per the Informant, the condition relating to minimum disclosure and prior permission requirement under „Purpose Clause‟ likely to disclose confidential business information of the VAS developer like it and blanket restriction imposed under the 2012 SDK agreement prohibits it from developing payment applications. As per the Informant, under the veil of disclosure requirement under the 2012 SDK agreement the Opposite Party No. 1 is foreclosing the market for VAS services.