In an order dated 8th June, 2009, JP Kundu, Asst Commissioner of Customs found that
“From the foregoing facts, it is clear that the claim made by Shri S Ramkumar is vexatious, because the impugned goods are covered by prior art declared by him and are not infringing the patent granted to him. Demurrage and other warehousing charges arising due to suspension of clearance are liquidated amounts and are to be borne by the Patent Holder.”
The grounds underlying the above decision are broadly the same as that adopted by the customs commissioners in Chennai and Mumbai. The Delhi Commissioner stresses that the essence of Ramkumar’s invention is a dual sim phone that enables “simultaneous communication”. In all the prototypes and allegedly infringing products submitted to him, he finds that none of them enable “simultaneously communication”, though they might have dual SIM sockets and more than one SIM lodged in the phone.
Reading the three customs order, I couldn’t help but notice that they are far more well reasoned than many of the IP orders that come out of our courts. Leaving me to wonder: perhaps I was hasty in once concluding that customs should not be deciding patent matters at all? Given the nature of the adversarial legal system in our country and the oft perceived intelligence of bureaucrats (customs commissioners are IRS officers?), wouldn’t they be upto the task of writing well reasoned patent judgments? Can’t we rely on counsels to furnish sophisticated arguments that would then make for more well informed orders? Or are customs officials just institutionally incompetent to decide such disputes?
dear shamnad,
i would caution (albeit friendly) you from rethinking on your earlier position, which is/was also mine. one or two instances of well-reasoned orders from primarily administrative authorities should not lead us to do a rethink. i still maintain that administrative authorities should restrict their adjudication to non-IPR aspects of IPR related cases. otherwise, in the long run, it has the potential to become a frankenstein’s monster.
on the other hand, u cant be more right about the quality of some of the recent patent/copyright judicial judgments/orders. i can vouch for this, as i ve myself been the sufferer of such a judicial ‘imperfect understanding’ of IPR related issues in the biggest (arguably) recent patent case in recent times. thats why, i ve often suggested (e.g. in another comment in one of the blog article at this site itself) that judiciary should take appropriate steps to develop a specially trained judges in IPR. and in the inter-regnum till a sizeable pool is developed, we may adopt some temporary measures, such as that adopted in UK where patent lawyers were co-opted to act as specialist patent judges for a brief period of time (say a year or so), after which they went back to their patent practice. in fact, this issue was explicitly suggested by us (however, on the sidelines, lol) to the bench headed by the hon’ble chief justice of a high court during a recent big-ticket patent case. but despite a general agreement about the nobility n need of such steps, nothing seems to have been done by the judiciary in this regard, at least, not so far.
Dear mnbc,
you’re right–one swallow does not a summer make.. and perhaps having admin authorities issue judicial decisions may not work as well in the long run. Apart from this issue of institutional competence, one might also run into constitutional issues and the separation of powers stuff that Prashant highlighted in a previous post. In other words, notwithstanding their nomenclature as ‘quasi judicial authorities”, can a customs commissioner (who is part of the executive) decide what is allegedly a hard core legal dispute?