IPAB on a Roll: Ramkumar’s Dual SIM Patent Suspended


Not content with having created its own law by ruling that “excessive pricing” can be used to reject a patent, the IPAB was at it again.
On the 13th of July, in a remarkable development for intellectual property law, the IPAB suspended the operation of Ramkumar’s patent! And much like the Madras High Court reported earlier, it did so very crytically in a one para order that reads as below:

“Counsel for the applicant present. Despite service of notice in M.P. Nos. 11 & 12/2009, none appeared on behalf of the respondent. Interim stay of operation of registered patent No. 214388 granted till September, 2009. Let the matter be posted for hearing in the month of September, 2009. The Registry is directed to issue notice of hearing to both the parties. Accordingly, M.P. No. 11/2009 stands disposed off.”

This order was in relation to a revocation petition filed by Spice Mobiles Ltd before the IPAB against Ramkumar’s patent. A similar revocation petition by Samsung is also pending before the IPAB. The petitioner prayed that since the final order (either validating or invalidating the patent) may take a while, the IPAB pass an interim stay against the operation of the patent.

Firstly, I’m not entirely sure whether a normal court of law can “stay the operation of a patent”? There is nothing in the Patents Act to support such a suspension of the operation of a patent. However, the court may restrain a party from enforcing his/her patent.

And even if under some stretch of the court’s powers under the CPC, it might be permissible for a “court” to order a broader suspension of the “operation of a patent”, it is a huge stretch to assume that the IPAB, a mere tribunal vested with the power only to decide on “validity” issues, can do so. Matthews George, an NUJS student who has guest blogged with us earlier will soon bring you a detailed post on the legality or otherwise of the IPAB order.

As we’ve been stressing on this blog, Ramkumar’s patent is questionable and his case a very weak one. However, this order might be one instance where the law might favour him. We can expect an appeal from him to the High Court, challenging the legality of such a revolutionary order by the IPAB.

Clearly, the IPAB is on a roll….and unless it reins itself in and thinks through its orders, it is likely to notch up a record number of “reversals” from the High Courts. And more importantly, it could come under some serious scrutiny from the government.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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