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IPAB: Issues And Challenges

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

However in 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 bias.

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 of law.6

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 7.

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.

Hence specialized judiciary causes decadence of law, and this is not just limited to IPAB, but also to tax tribunals 8, National Company Law Appellate Tribunal etc. who at times have questioned the doctrine of 'separation of power' and rule of law. 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

Access to 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. The 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

Conclusion
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 IPAB13.

The division 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 matters. 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.

End-Notes:
  1. 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
  2. Anon, 2018. An overview of Indian Intellectual Property Appellate Board Pendency. Lex Orbis.
  3. S.P. Sampath Kumar v. Union of India AIR 1987 SC 386
  4. 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- 2021.
  5. 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.
  6. Rifkind, S., 1951. A Special Court for Patent Litigation? The Danger of a Specialized Judiciary? CMU Digital Library.
  7. W.P. (C) 5590/2015.
  8. Madras Bar Association vs. Union of India 2020 SCC OnLine SC 962
  9. 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
  10. IBA Survey, p, 37; IIPI Study, p. 7; see also Zimmer, 'Overview of Specialized Courts', p. 4.
  11. Anon, 2012. Specialized courts: International criminal courts and Tribunals the International criminal court. The Rules, Practice, and Jurisprudence of International Courts and Tribunals, pp.189232.
  12. 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- matters-176999.
  13. 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- 11627126196139.html.

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