In a sharply worded order passed last week, Justice Pratibha Singh of the Delhi High Court has made scathing observations regarding the dysfunctional Intellectual Property Appellate Board (IPAB) and has demanded answers from the Secretary of the DIIPT on the state of affairs at the IPAB.
The tribunal is empowered to hear appeals against orders of the IP Office, as well as the power to hear revocation petitions against trademark and patent matters as well as fix royalty rates under the Copyright Act. It is required to hear these matters by constituting benches of two, consisting of one judicial member and one technical member who is supposed to be an expert either in trademarks or patents or copyright or plant varieties, depending on the matter that is being heard. Currently there are no judicial members on the IPAB because of which it cannot conduct hearing.
Justice Pratibha Singh, in her order, summarises, the state of affairs at the IPAB in the following words:
“The IPAB is a specialized forum which was constituted under the Trade Marks Act and the Patents Act in order to ensure expeditious disposals of intellectual property matters. The manner in which the IPAB has been functioning during the last over 15 years shows that at every stage, there has been delay in the appointments being made to the IPAB, both of judicial members and technical members. Further, adequate infrastructure and autonomy is also not granted to the IPAB in order to make its functioning efficient and smooth. The statement of objects and reasons when the Trade Marks Act was amended, clearly records that the purpose of the IPAB is for speedy disposal of appeals and rectification applications, which at that time was jurisdiction which was vested in the High Courts. However, this purpose has been completely set at naught owing to the manner in which the IPAB has been functioning since the time it has been constituted.”
As a lawyer, prior to her elevation to the bench, Justice Pratibha Singh had sued the Government of India, in her capacity as the Secretary of the Asian Patent Attorney Association (APAA) on the grounds that the IPAB was not being provided enough resources. Those petitions filed 6 years ago were quite successful and lead to the IPAB getting a permanent office in Delhi. Until then the IPAB was leading a ‘nomadic existence’, as Aparajita had described it in her post over here.
Over the years, the IPAB has had a truly fraught existence, save for the few years when Justice Prabha Sridevan churned out some great jurisprudence in the years that she was the Chairperson of the IPAB. There have been serious worries about the independence of the IPAB and Shamnad had even filed a PIL before the Madras High Court, where a great legal team consisting of Senior Advocate Arvind Datar and Vineet Subramani convinced a bench headed by the then Chief Justice Sanjay Kishan Kaul to strike down parts of the Trade Marks Act in order to guarantee the independence of the IPAB. The judgment can be accessed here.
Yet, here we are, almost 9 years after Shamnad first filed that PIL, discussing the state of affairs because of another assault on the IPAB’s independence by the Finance Act, 2017. While discussing the constitutionality of the Finance Act, 2017 a few years ago, I had pointed out how it was important for IP Bar Associations to take up the fight to protect judicial independence of the IPAB. Strangely, apart from Justice Pratibha Singh, who as a lawyer was ready to sue the government over the functioning of the IPAB, most other IP lawyers appear to be either disinterested or simply clueless about the state of affairs at the IPAB. I use the word “surprising” because the IP Bar has the most to gain from a fully functional IPAB, yet they do very little to make sure it functions. Other bar associations like for example the one representing practitioners before the Debt Recovery Tribunal (DRT), went all the way till the Supreme Court to ask for reform of the DRTs. Perhaps, Indian IP lawyers are earning too much money through IP prosecution before the IP office to really care about litigation before the IPAB.
We are now at the stage, where the IPAB has been dysfunctional for a good portion of the 16 years for which it has been in existence and it is time to ask whether the government should be petitioned to simply shut down the IPAB and revert the functions vested in the IPAB back to the High Courts.