I write to bring you an update regarding the Madras HC portfolio allocation. Furthermore, given the seemingly ad-hoc nature of allocation, we felt it appropriate to use this opportunity to rekindle the discussion surrounding portfolio allocations.
But first, the update.
The allocation of IP matters, for 1st June onwards, was as follows:
- Kalaiyarasan J.: IP matters upto the year 2010.
- Anita Sumanth J.: IP matters from the year 2014.
- Ravindran J. (V. Parthiban J., in former’s absence): IP matters between 2010 and 2014.
The same was ascertained from a perusal of the following documents:
The cause list and Notification 217/2017.
Prior to moving ahead, I would like to advise readers to pay close attention to the sources cited over the course of this write-up. A large quantum of assertions have been made on the basis of conversations with leading IP scholars and not on any systematic study, as such. Hence, please be cognizant of the same and note the source we cite for each assertion. Having said so, we would be grateful if readers could point us towards sources of greater authoritative value, as compared to anecdotal evidence.
I have picked most of the material from Prof. Basheer’s paper here and recent email interactions.
Now that we are done with the caveat, let us delve into the issues…
Core Issues
First, why do we think that the Madras HC portfolio allocation was ad-hoc and arbitrary in nature?
J. Anita Sumanth, so far, has largely dealt with taxation issues. Therefore, allocating the IP portfolio to her seems to point towards random allocation practices to tackle backlog, as opposed to an attempt at fostering IP expertise among the HC judges. This inference has been further substantiated through interactions with leading Chennai IP lawyers.
We would be immensely grateful if readers could point us towards any study of cause lists that attempts to ascertain the portfolio allocation patterns of the Madras HC.
The next question we need to deal with is:
Why is ad-hoc and random portfolio allocation problematic?
While it might not seem to be directly problematic, it is only when you see the alternatives, that the inefficiency of random allocation comes to light. The alternative is a systematic allocation process, akin to the process in the Delhi HC.
The Delhi HC, informally, allocates IP portfolios in such a manner so as to cultivate IP related expertise in certain judges (inferred from interviewing Delhi based IP lawyers). In order to understand the benefits of such a system, we need to first understand the nature of IP law.
Intellectual Property, especially patent law, intersects greatly with complex scientific areas, such as the various sub-fields of engineering, pharmacology, medicine and others. Hence, one of the flowing contention is that judges with expertise in said areas would be better placed to deal with such cases, as opposed to judges trained solely in law.
While the argument is quite easy to accept, the devil lies in the details.
What kind of expertise helps in adjudication involving IP issues?
What are possible mechanisms that can be used to foster said expertise?
Before we delve into the above questions, let us first understand the end that we are trying to achieve here. The attempt is to improve adjudication on two fronts: Speed and quality (accuracy).
While one could assume that greater scientific knowledge would lead to improved adjudication, there exist examples of judges with no scientific background having put out judgments of great logical coherence and insight. Few such individuals that Prof. Basheer refers to are J. Ravindra Bhat, J. Prabha Sridevan and J. G.S. Patel. At the same time, Prof. Basheer refers to individuals with considerable scientific background having put out unsatisfactory judgments.
So, what kind of expertise helps in IP adjudication?
While noting that expertise in scientific concepts helps in IP adjudication, we also need to understand that IP adjudication does not occur in a vacuum. IP law intersects with public law (constitutional and administrative), public health law and tort law. For instance, an overly technical adjudicator, while adjudicating upon a cancer drug patent validity case, might not appreciate the true scope of the public interest at stake.
Therefore, a judge, having limited exposure to a wider array of cases, irrespective of degree of exposure to scientific concepts, will not be the best bet. Conversely, the best judge would be one who can both appreciate nuances in technical subjects and appreciate the overarching body of law that surrounds, or should surround IP adjudication.
This brings us to the next question:
What are possible mechanisms that can be used to foster said expertise?
Prof. Basheer refers to two ways of going about this:
- Filtering Judges Best Suited for IP Adjudication.
- Exposing Selected Judges to a certain proportion of IP cases and other cases, to ensure comfort with scientific data, as well as overarching concepts of general law.
It is impractical and unreasonable to expect a judge to have an understanding of every scientific field known to mankind. Therefore, Prof. Basheer argues that having an educational qualification as a background serves no purpose. Rather, he suggests selection of judges on the basis of an inclination to deal with complex scientific concepts. The idea is to select the right kind of mindset, rather than any specific knowledge reservoir. The task of bridging knowledge gaps is that of “experts“, provided for under the Patent Act, and not judges.
After selection of judges based on inclinations, Prof. Basheer suggests exposing these judges to a wide array of cases, apart from IP cases to ensure avoidance of insular jurisprudence, while also fostering expertise in cases dealing with complex scientific material. Further, he suggests training sessions.
Additionally, he recommends a minimum tenure on the IP bench for the selected judges, such that the gained expertise can be utilized for delivering faster and more accurate judgments.
The only way we can ensure a systematic allocation process is by formalising the allocation process. While the Commercial Courts Act attempts to formalize the allocation process, its purpose seems to be to expedite adjudication involving cases of high monetary value, as opposed to furthering any kind of expertise in IP adjudication.
Takeaway
The point behind this piece is to provide readers with a very rough understanding of the issues surrounding portfolio allocation and how allocation mechanisms can be improved upon. The purpose is more to provide a basic overview to initiate the debate, rather than to be comprehensive.
For a more thorough understanding of the Indian IP adjudication scenario, I would suggest readers to go through Prof. Basheer’s article. He has written on the issue on the blog (1 2 3) as well, but his article is far more detailed.
Finally, any inputs from readers will be deeply appreciated and thought upon.
Chief References
Prof. Basheer’s Article, Cause List, Notification 217/2017 and Prof. Basheer’s three part blog post (1, 2, 3).
Don’t think allocation of IP matters in Delhi is based on expertise in IP. There are 4/5 judges sitting on the original side. 2 of them handling only arbitration matters and the rest are given all sorts of matters including IP, property disputes, probates, etc.
While the analysis is good, with the dearth of judges in India, it is unreasonable to suggest and expect special courts for only IP matters. Why should IP be considered different from any other type of matter?
@XYZ
Firstly, I deeply appreciate you taking the time to respond and engage.
I cannot comment further on whether the Delhi HC actually allocates in accordance with any pattern because I had arrived at the same on the basis of anecdotal evidence.
I definitely can comment on your second contention though.
IP should be treated differently from other matters because they require a certain level of engagement with scientific concepts. Experts can definitely fill the gap, but I don’t think you will deny the assertion that having judges who are more inclined to deal in scientific issues are better placed to adjudicate upon IP issues than a disinclined judge. So, making selections on the basis of tendencies to indulge in scientific concepts, in addition to “experts”, would increase efficiency.
Moving on to your point about resources. The question is one that requires empirical analysis. While I cannot do that, I would like to talk about the possibility of the existence of an optimum scenario.
Let us say there are 10 Judges and 2 are inclined to delve into scientific concepts. Further, suppose there exist 100 total cases of which 10 are IP cases.
The argument is not to create a bench which deals exclusively with IP cases. The idea is to to distribute the 10 IP cases between the 2 Judges and have them additionally adjudicate upon other regular cases (5 in number if distributed equally). That way there is no inefficient use of resources even when resources are limited.
Suppose, that the number of IP cases are much greater in proportion, then the disinclined judges will also have to adjudicate upon IP cases, in addition to the inclined judges. At least, the inclined judges will produce better adjudication without causing any inefficient distribution of resources.
In any case, the above example was only illustrative in nature and your point about the limited resources is very well taken. The only point I wish to highlight is that there might be an optimum distribution, depending on the actual figures.