Quality of Justice
has been the fundamental quarry of the Indian Legal
system, and tribunalisation has been a key ingredient to overcome the issue of
delays and backlog in delivery of justice.1 These quasi-judicial institutions
root from the 42nd Amendment Act, 1976 which empowered the parliament and state
legislatures to establish administrative and other tribunals.
Despite the fact that these tribunals have significantly contributed to reduce
the rate of pendency over the recent years 2, they have been no exception to
judicial scrutiny.3 the cross pollination of legal ideas, overlooking other
legal frameworks, political-economic influence and excessive cost for
maintaining such tribunals were the major contentions posed by the experts.
These problems needed to be addressed by the government before the boon turned
into bane. The Tribunals Reforms (Rationalization and Conditions of Service)
Ordinance promulgated by the Parliament on April 4, 2021 is one such example of
constitutional fetter used to curb such menace.4
IPAB (Intellectual Property Appellate Board), which was instituted to provide a
speedy mechanism for appeals concerning Indian Patent and Trademark Office and
determining the validity or otherwise of granted patents and trademarks was also
one of the tribunals which was made dysfunctional under the ordinance.
There were counterparts advocating as well as opposing this move by the
government, to this the Delhi High Court, on the recommendations of a two-
member judge committee, announced the creation of the much-welcomed Intellectual
Property Division (IPD).
But this IP Division bench is yet to be established in the other judicatures,
hence the moot questions here remain that do we really need a specialized court
like IPAB and what are the challenges and issues associated with it? This
article will answer all such questions to enlighten the readers with the
supporting and contrasting views on the issues and equip the readers with
necessary jurisprudence required to reach a conclusion.
History Of IPAB
India is a member state of World Trade Organization (WTO) and is a signatory to
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) , under
which Art. 41 provides that all the member states can adopt a fair and equitable
enforcement procedure and there is no obligation
to put in place a judicial system for the enforcement of intellectual property
rights distinct from that for the enforcement of law in general.5
India Intellectual Property Appellate Board (IPAB) was been constituted by a
Gazette notification of the Central Government in the Ministry of Commerce and
Industry on 15th September 2003 to hear appeals against the decisions of the
Registrar under the Trade Marks Act, 1999 and the Geographical Indications of
Goods (Registration and Protection) Act, 1999. This was done under article 323 B
of the constitution of India to reduce the workload of courts, to expedite
decisions and to provide a forum which would be manned by the experts.
Do We Need IPAB In India?
While taking into cognizance of the issues and challenges associated with
functioning of IPAB, one must adopt a reasonable test to determine the same. The
three-part test should question the effectiveness of decision, the costs
associated with the development and maintenance of IPAB and the possibility of
Requirement of specialized courts should be balanced with the requirements of
the country, as there is a diversity of legal systems across the globe as IPAB
is somewhat similar to the Court of Appeals for the Federal Circuit (CAFC) in
the United States. But the underlying fact here remains unchanged that Indian
legal system is very different and complex, creating specialized courts and
keeping subjects in air-tight compartments will lead to sterility in that area
The main reason why IPAB was instituted in India was to let the experts
adjudicate the matters, but this proposition itself is a contradiction. As
pointed out by Judge Rifkind The patent law does not live in the seclusion and
silence of a Trappist monastery
, this emphasis that License agreements are
essentially contracts subject to the law of contracts; those infringements are
essentially trespassing subject to the law of torts; that patent rights are a
species of property rights; and that proof in patent litigation is subject to
the laws of evidence.
Similar contention was made in a writ petition before Madras High Court in
Shamnad Basheer v. Union of India
This case was based on Section 83 (g) of the
Patents Act, 1970 which clearly mentions that:
Patents are granted to make the
benefit of the patented invention available at reasonably affordable prices to
the public, and during the functioning of IPAB its internal process was not
thoroughly monitored due to which the persons availing facilities get a way to
skip the statutory requirements as laid down by the legislature.
specialized judiciary causes decadence of law, and this is not just limited to IPAB,
but also to tax tribunals8, National Company Law Appellate Tribunal etc. who at
times have questioned the doctrine of separation of power
and rule of
Adequately managing a complete new set of judicial human resources and to
maintain the asymmetry of wages.
Justice Singh summed up the two persistent
problems with the IPAB:
At every stage, there has been delay in the
appointments being made to the IPAB, both of judicial members and technical
members. Further, adequate infrastructure and autonomy is also not granted to
the IPAB in order to make its functioning efficient and smooth when compared to
the private sector will incur huge expenses on the government.9
justice is also a potential problem. Litigants may be forced to bear the costs
resulting from the centralization of specialized IP courts and may thus have to
plead before a court which may not be easily reachable from a geographic
perspective.10 another issue with IPAB, is the unavoidable bias attached.
critiques have highlighted the fact that such courts are impartial in nature as
there is a likelihood that only a few judges and attorneys will specialize in IPR, thereby potentially biasing court personnel and judges who consistently
interact with a limited group of attorneys and judges.11
The highly industrialized and advanced society in which we live has a great
appetite for know- how
, and the judicial procedure requires a special type of
expertise, which does not fit in the conventional definition. On July 06, 2021
the Delhi High Court's move to establish the Intellectual Property Division (IPD)
to deal with all matters related to Intellectual Property Rights (IPR) 12 was
the perfect solution to all the problems faced but the parliamentary standing
committee on commerce has recommended re-establishing the IPAB 13.
bench adopted by Delhi High Court should have a technical wing to assist, so
that the judges have access to specialized knowledge for which IPAB was created.
These experts should be available to these judges at multiple stages of the
trial and provide the judge with a fair and neutral viewpoint on technical
Along with this judge should be provided with special training
throughout their appointment to make the mechanism more efficient. In sum, the
new machinery devices by Delhi HC should be adopted by other courts also to
balance the competing interests which is the core of IP Disputes.
- Ghosh, A., 2018. Reforming the Tribunals Framework in India: An Interim
Report. Vidhi: Centre for Legal Policy. Available at: https://vidhilegalpolicy.in/wpcontent/uploads/2020/06/8thJuneFinalDraft.pdf
- Anon, 2018. An overview of Indian Intellectual Property Appellate Board Pendency. Lex Orbis.
- S.P. Sampath Kumar v. Union of India AIR 1987 SC 386
- The tribunals Reforms (Rationalization and Conditions of Service)
ordinance, 2021. PRS Legislative Research. Available at: https://prsindia.org/billtrack/the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance-
- Mr. Jacques de Werra, 2019. A closer look at specialized intellectual property
courts. Available at: https://www.wipo.int/wipo_magazine/en/2016/si/article_0009.html.
- Rifkind, S., 1951. A Special Court for Patent Litigation? The Danger of a
Specialized Judiciary? CMU Digital Library.
- W.P. (C) 5590/2015.
- Madras Bar Association vs. Union of India 2020 SCC OnLine SC 962
- Anon, 2019. The Indian government must act now to end Ipab dysfunction. RSS.
Available at: https://www.iam- media.com/copyright/Saturday-opinion-India-ipab.
- IBA Survey, p, 37; IIPI Study, p. 7; see also Zimmer, 'Overview of
Specialized Courts', p. 4.
- Anon, 2012. Specialized courts: International criminal courts and
Tribunals the International criminal court. The Rules, Practice, and
Jurisprudence of International Courts and Tribunals, pp.189–232.
- Pandey, S., 2021. Delhi high COURT establishes intellectual property division
to deal with intellectual Property Cases. Live Law. Available at: https://www.livelaw.in/news-updates/delhi-high-court-establishes-ipds-for-ipr-
- Mishra, A.R., 2021. Parliamentary panel bats for revival of ipr appellate
body. Mint. Available at: https://www.livemint.com/news/india/parliament-panel-recommends-review-of-india-s-ipr-policy-