The Patents Act, 1970 currently provides for three forums before which a patent can be revoked. Under Section 25(2) the Patent Office can revoke a patent under a post-grant opposition. Under Section 64 both the High Court and the Intellectual Property Appellate Board (IPAB) can revoke patents during the course of infringement proceedings and even independently in the latter’s case. Now the problem with a multiplicity of such forums is that each forum follows a different procedure and is staffed with differently qualified people sitting as judges.
For example the post-grant opposition is decided by a Controller who is assisted by an Opposition Board consisting of examiners. The Controller is usually an examiner who has been promoted which means that the only qualification that was required of him was a degree in science. The IPAB on the other hand is staffed by a judicial member and a technical member. The judicial member can be either a former High Court judge or a bureaucrat while the technical member is required to be a former Controller. The revocations before a High Court however are heard by a Single Judge who is basically an advocate with atleast 10 years of practice and does not require any experience in the sciences. Instead Section 115 of the Patents Act allows the High Court to appoint scientific advisors to advice the Court on the technical issues.
Moreover the procedures followed by each one of these forums are completely different. The procedure before the Patent Office is governed by the Patent Rules, 2003; the procedure before the IPAB is governed by its own rules and the procedure before the High Court is governed either by its own rules or the Code of Civil Procedure.
The situation with trademarks is no better. Infringement suits are decided by civil courts while rectifications are decided by either the Registrar of Trademark or the IPAB, depending on the situation.
How can anyone expect any uniformity in the quality and consistency of the decision making process when the procedure differs so widely between each one of these forums? Just look at the Enercon dispute: 23 revocation petitions before the IPAB, 6 before the Delhi High Court and atleast 2 post-grant oppositions before the patent office that I am aware of. Does anybody seriously expect even a minimum degree of consistency in the judgments rendered by these various forums?
Two questions arise in this context:
The first pertains to the constitutionality of having multiple forums to decide the same right. In my opinion the current setup falls foul of Article 14 of the Indian Constitution which requires Parliament to ensure the ‘equal protection’ of laws to all. ‘Equal protection’ basically allows the state to treat different classes of persons differently as long as the State can establish that the classification has a reasonable basis and that such classification bears a rational nexus to the aims and objectives of the statute. In the case of patents and trademarks revocations there is absolutely no reasonable basis for revoking the very same right through multiple procedures and forums. The Patents Act cannot therefore classify the very same patent right into three different categories of revocation. The same stands true for the trademark revocation procedure. Moreover what could possibly be the reasonable basis for splitting patent and trademark trials into infringement proceedings and revocation proceedings and have the High Court decide the former while the IPAB decides the latter? If the High Court has been deemed fit enough to decide an infringement matter it can also definitely decide a revocation matter. In short there is no reasonable basis for these arbitrary classifications. In short I think any High Court would be more than happy to strike down these provisions as unconstitutional and violative of Article 14 of the Constitution of India.
The second question that I would like to ask is about the IP Bar i.e. the various IP lawyers and law firms practising in India. Why exactly is the IP Bar sleeping over such utter chaos for so long? Normally it is the Bar which is the first to attack such arbitrary legislations. For example the Debt Recovery Tribunals, the National Company Law Tribunal, the National Tax Tribunal were all challenged from the Delhi High Court to the Madras High Court by the Bar Associations. The IP space in India is populated by multiple IP bodies all of which are named with fancy sounding acronyms. However apart from the Asian Patent Attorney’s Association (APAA) which filed a petition against the DIPP over the lack of appointments to the IPAB, I am completely unaware of the remaining organizations doing anything remotely useful apart from the run of the mill networking conferences.
It is all well to bemoan the lack of governance or reform by the DIPP but why is it that the IP Bar has been marked by such high levels of impotence when it comes to protecting their areas of practice from the arbitrary actions of the State?