Patent

IPAB’s Power of Review


This is a slightly dated order of the IPAB (August 2009), where it was held that IPAB does not have the power of substantive review of its decisions. The order was delivered in an appeal involving Nestle, the appeal arising out of the rejection under Section 15 of Nestle’s application for a patent.
The hearing on the appeal was adjourned twice at the request of the authorized counsel for the appellant; a third date was also sought and granted to the appellant. However, there was none present on behalf of the appellant on the said date and consequently the appeal was treated as abandoned under Rule 17(2) of the IPAB Rules, 2003.
A review petition purportedly under Section 92 of the Trademarks Act was filed on grounds that the IPAB had not followed Rule 16 which requires issuance of notice of hearing to the parties and that the non-appearance of the appellant or its counsel was unintentional and bonafide. The appellant however admitted that its authorized counsel had not informed it of the date of hearing.
To this the IPAB responded saying that by the appellant’s own admission, the authorized counsel was to blame for not informing it of the date of hearing. (I am yet to take a look at Rule 16, but, is issuance of notice of hearing subject to the absence of the counsel of a party?) The IPAB’s primary contention was with regard to its own ability to undertake substantive review of orders passed by it.
The IPAB interpreted Section 92 of the Trademarks Act to conclude that although the Board was vested with the powers of a Civil court to issue summons or receive evidence, the power of review was conspicuous by its absence. This is in contrast to Section 77 of the Patents Act or Section 127 of the Trademarks Act which give the Controller and the Registrar respectively, the power of substantive review.
The Board also held that it (meaning the IPAB), being a creation of a statute, could not vest itself with powers of substantive review unless the statute expressly provided for it. The power of procedural review however being ancillary to its function, was inherent in it. To support this, the Board cited a few decisions of the Supreme Court, the Grindlays decision being a prominent one.
Since the petition in question called for a review of a debatable point of substantive law and not something patently erroneous, the Board held that such a review was not within the scope of its powers.
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