By Saiesha Dhawan (Intern at Excelon IP)
Introduction
The Intellectual Property Appellate Board (IPAB) was abolished in April 2021 with the passing of the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, despite a number of representations to keep the IPAB operational. What led to the end of this 18-year-old board is still unclear; even though some reports suggest that one of the reasons for this landmark decision was IPAB’s slow delivery of justice, the rate of disposal of cases rose to 48.9 per month after August 2020, leading to a total of 275 disposed of cases in 2020, that too, amidst a global pandemic.
With the abolishment of five appellate tribunals, the matters pending before the boards have been transferred to the respective high courts, creating a huge burden by adding to their existing backlog. Moreover, the significance of the IPAB has been diluted with its scrapping; besides the delay in hearings, the high courts are not equipped with the necessary technical personnel. This shift can undeniably have extreme ramifications on the IP regime in the country. Yet, the opponents of IPAB disagree. Justice Prabha Sridevan, who is a former IPAB Chairperson herself, believes that the scrapping of the board was a necessity for a plethora of reasons such as; dysfunctionality, overlapping litigation, the insignificance of technical expertise, infrastructural constraints, and pending lawsuits on the functioning of the IPAB. However, the Parliamentary Standing Committee on Commerce of the Rajya Sabha in its report has recommended a restructure and reinstatement of the IPAB, fearing an increase in the pendency of cases. Mr. V. Vijayasai Reddy in the Committee’s report has stated, “The committee also opines that an inordinate delay in the appointment of officials at higher levels and the resultant pause in the functioning of the IPAB affected its optimal performance. The committee, therefore, recommends to the government that IPAB should be re-established, rather than being abolished, and should be empowered and strengthened with more structural autonomy, infrastructural and administrative reforms, as well as ensuring the timely appointment of officials and experienced manpower.” Standing strong next to the Parliamentary Committee’s criticism, the proponents of the IPAB feel that this impulsive step of the government is a regressive step that destroys one of the main pillars of the IP justice system. It seems prominent to note here that no Judicial Impact Assessment was conducted by the Government before issuing the Ordinance, nor any active consultations were carried out.
Is the Intellectual Property Division (IPD) a Game-Changer?
After the abolishment of the IPAB, the High Courts have been left to call the shots. In the month of July, the Delhi High Court announced its decision of creating an IP Division (IPD). However, the structural shift is not substantial. The IP Bench will comprise of nominated judges from the Commercial Division of the High Court of Delhi, who were heretofore hearing IP matters. The bench will deal with all original and appellate proceedings. Interestingly, the Delhi High Court opened the platform for suggestions from the members of the bar for the IPD Rules, 2021. As per the High Court’s rules, all Intellectual Property matters shall be covered under the umbrella of the Commercial Courts Act, 2015, Delhi High Court (Original Side) Rules, 2018, and the Patent Suit Rules, 2021. Undeniably, the IPD Rules issued by the High Court of Delhi has paved the way for noteworthy developments in the procedural framework of the IP regime as the rules in many aspects, are the first of its kind. The rules have considered the needs of disabled advocates by the way of Rule 36; which provides for filing in a a Portable Document Format with Optical Character Recognition (OCR). Moreover, the rules also recommend the incorporation of new methods of evidence recording such as hot-tubbing i.e. concurrent evidence.
Currently, the IP division is gearing up to hear approximately 3000 cases which were pending before the IPAB.
The Outcome
India presently lacks an uniform IP judicial system. With the abolishment of a tribunal which has time and again delivered notable judgments, a consistent Intellectual Property redressal mechanism is the need of the hour. While the Delhi High Court has laid down the initial foundation with the establishment of the IP Division bench, the question which arises is where the other High Courts will follow suit or come up with their own system? This uncertainty can indubitably lead to a non-uniform IP justice delivery system which can be lethal to the IP eco-system as a whole. According to Mr. Pravin Anand in, Abolishing IPAB: An own goal?, this shift can lower India’s IP standards which were established over a period of time. Moreover, this decision’s negative implications are not far-fetched, this abolishment can, to a great extent, discourage companies from having business interests in India by not aligning with the ease of doing business strategy adopted by the government of India.
Furthermore, the IPAB, in all its capacity, was an expert technical tribunal. Whereas the IPD, headed by the commercial division bench, although essentially lacks in technical expertise, makes up for the same by including Trademark and Patent agents to assist the court. Additionally, the IP bench may also maintain a panel of experts, which may be reviewed periodically. Howbeit, this still remains on paper and not in practice and more significantly, only for the jurisdiction of Delhi. The remaining High Courts are still unaccounted for.