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Breaking News: IPAB SLP Dismissed!


[Posted on behalf of Prof. Shamnad Basheer, as taken from his email sent out to the SpicyIP subscriber list earlier today]: 

In a significant development for Indian IP law, the Supreme Court (a bench consisting of Justices Gogoi and Ramanna) dismissed the government’s appeal in our IPAB PIL matter.

With this dismissal, the earlier Madras High Court ruling striking down key provisions of the IPAB as unconstitutional has attained finality.

By way of background, I had filed a PIL (public interest litigation) challenging the constitutionality of the IPAB more than 5 years ago. Some months ago, the Madras High Court court ruled in our favour, holding as below:

1. That ILS (Indian legal service) officers could not be appointed as judicial members to the IPAB.

2. Joint registrars (of the Trademark office) could only be appointed as technical members (trademarks) to the IPAB, if they had at least 12 years of experience in the practice of law at the bar or with the state judiciary.

3. Those appointed as technical members on the patents side were to  render only “technical advice” to the IPAB bench deciding the matter. And could not don the robe of adjudicators themselves. In short, they cannot write any judgments in patent cases or adjudicate the matter in any way but are to simply assist the bench.

4. The selection committee for appointment of various members to the IPAB (both technical and legal) ought to be predominated by those with judicial experience.  The court made it clear that members from the executive cannot rule the roost when it came to such selections.

For a more detailed account of the courts ruling, see our posts linked below:

//spicyip.com/2015/03/tribunals-in-troubled-waters-highlights-of-the-ipab-decision.html

//spicyip.com/2015/04/ipab-constitutionality-revised-order-vis-a-vis-patents-act.html

The government (Union of India) took issue with all of the high court findings in its SLP (Special Leave Petition) filed around ten days ago.

Fortunately, the Supreme Court immediately dismissed this SLP! Stating that the law was well settled and clear. And there was no reason to interfere with the Madras High Court Ruling. Noted Senior Counsel, Arvind P Datar (popularly known as the tribunal warrior) who appeared pro bono for us did not even have to utter a single word.

One hopes that the government will now resist fighting what is now a long and well established line of precedent and set in place a process for rendering the IPAB a more competent and judicially independent body, free of executive influence.

Many thanks to the terrific team of lawyers who appeared probono for me in this matter: Mr Arvind Datar, Vineet Subramani, Liz Mathew (Advocate on Record), Sai Vinod and Prashant Reddy and several others who represented me probono in this matter and worked round the clock to secure this victory over 5 long and well fought years!

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

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