Last week, Arun responded to my piece to shut down the IPAB and shift back its functions to the High Courts. I am not surprised – Arun’s firm makes a healthy living by filing matters before the IPAB. I have been speaking to several other people on this issue including former Chairperson of the IPAB, Justice Prabha Sridevan who was kind enough to point me to an opinion piece she wrote many years ago in the Hindu calling for the scrapping of the IPAB. She informed me that her viewpoint remains unchanged and that the IPAB should be shut down and its functions shifted back to the High Court. Similarly, from my conversations with IP lawyers, it appears that the first generation of IP lawyers, who are looking to make their mark in the profession, are also the ones who are more in favour of scrapping the IPAB and shifting its functions back to the High Courts. IP lawyers from Bombay are especially in favour of doing away with the IPAB because it rarely holds circuit hearings in Bombay making the tribunal a wholly Delhi and Chennai affair.
Difference in perceptions apart, I have to respond to the several factual and logical fallacies in Arun’s piece.
Let us begin with Arun’s claims that the IPAB is not very different in terms of quality, when contrasted to the High Court. He conveniently does not engage with the number of issues we pointed out in our earlier post on the quality of appointments with technical members, especially the poor scrutiny of qualifications of Syed Obaidur Rahaman and Sanjeev Chaswal. He also does not engage with the examples of judgments written by these technical members where they simply skipped the basics of evidence law. Arun’s single point of reference appears to be his personal experience and the fact that the IPAB engaged with Section 3(d) issues first in the Novartis case. In reality, the IPAB mucked up the Novartis case on an epic scale. Has Arun forgotten how the IPAB declared that the Glivec patent could be revoked on the basis of Section 3(b) of the Patents Acts because high prices caused by patents would cause riots and that would go against the public order exception? Shamnad had criticized that line of reasoning in the following words: “This is plain ridiculous! There is nothing in the patents act to support such a reading. As we’ve been stressing on this blog, one ought to draw a distinction between the grant of a patent and the subsequent use/abuse of a patent.”
Coming to Arun’s rather pedestrian allegation that we criticised Justice Manmohan Singh’s judgments because we do not like the outcomes in his cases, I must presume that either he trying to earn brownie points from a judge who continues to be a Chairperson of the IPAB till September or that he has not been following SpicyIP very closely. I have written extensively on this blog, on the several appalling errors in the legal reasoning offered by Justice Manmohan Singh’s judgments. For most part, this blog focuses on legal reasoning in judgments and not outcomes.
On the point of the facilities available to the IPAB – where Arun has alleged that we incorrectly claim that the IPAB has ramshackle facilities, let me refer you to Justice Prabha Sridevan’s report filed with the Madras High Court in 2011 – in her report at paragraph 12 and page 4, she clearly outlined the infrastructural constraints faced by the IPAB. Post that report, the government filed an affidavit promising a new building with state of the art facilities. Nine years later the IPAB continues to function from the same premises, with a few minor renovations. As for the Delhi office of the IPAB – it operates out of a ramshackle government building that pales in comparison to the new building at the Delhi High Court which has been knick-named ‘T3’, after the swanky Terminal 3 of the Delhi International Airport.
Last but not the least, coming to the thrust of Arun’s argument that it makes no sense to shut down the IPAB and send its matters back to the High Courts because it is retired High Court judges who are appointed as the Chairpersons of the IPAB. The obvious point that Arun misses is that unlike the IPAB, the High Court does not have these ‘technical members’ and more importantly, will always have judges sitting on rotation – there will never be a situation where the High Court is non-functional for years together (like the IPAB) because of a lack of appointments. More importantly because there is a rotation of judges on different rosters at a High Court, there is no question of a sub-standard judge hearing IP matters for years together.
In any event, I do intend to petition the DPIIT to shut down the IPAB and transfer its functions back to the High Courts. I will publish a version of the petition on SpicyIP for comments and endorsements before sending it to the government.
[Edit: Please click here to view Arun’s response to this post.]
Firstly, alleging someone’s views to be biased because they practice in a particular firm which practices before a forum is clearly a potential ad hominem, and this blog is a sane place for legal argumentation and not your ego-driven ad hominem comments. So please do not use a public forum like this to forward the thrust of your arguments in an ad hominem way. Your attitude reeks of intimidation here, which shows your nervousness to be honest.
And secondly, you are not THE only academic who has a particular point of view in the world which is unparallel and unprecedented. You have to realise the values of school of thought. And before clearly saying there were “appalling errors” in the judges arguments, reflect whether your reasoning is capable of being wrong or not. You are not someone who is the ultimate authority in this subject, neither are you close to being one. So stop using language which imposes your point of view, rather than convinces someone of your logical consistency. You are misleading the reader by imposing your perspective that the person writing this post might be
You should really reflect on your language and attitude, it’s disheartening for the whole legal community to see your attitude towards your contemporaries. Learn how to talk, before making an argument.
Hi Prashant, to borrow a line from the last publicly posted comment “Ok, first of all, calm down and keep this discussion healthy if you can”. In an academic discussion, it is ok to have different point of views. You may not agree with Arun’s post (personally I do) but frankly delete the rhetoric and personal attacks and you still have a post that you can publish and may be that post is more palatable to the readers of the blog as well as respects the other contributor.
Now let us put aside all the snide remarks about:
how much the other contirbutor’s firm benefits from the IPAB practice (obviously it will, he is an IP practitioner. how can you hold that against him?),
the fact that his views are formed because of his experience (obviously it will, and is that not better than just having a theoretical point of view?),
earning brownie points from Manmohan Singh (really? pretty sure there are several lawyers who would say he is a good judge without wanting to earn brownie points. pls don’t make loose and serious accusations without basis).
Next having been to the IPAB Chennai and new Delhi bench – it’s not perfect but it’s not terrible. The Delhi High Court’s new commercial side is swanky, but that’s the exception and not the rule. Perhaps you have not seen the old NCLAT where the rush every single day to get into the Chairperson’s court was crazy or the gigantic rooms now where noone except the person at the podium can hear a thing being whispered up front. Or the TDSAT and other tribunals in the Samrat Hotel in Delhi which is frankly not where any tribunal should have its chamber. Maybe the IPAB will move to a nicer place eventually. As of now, it’s functional and not terrible.
Also the High Court’s don’t have enough appointments, and they certainly don’t have the technical expertise. A scientific advisor even one who claims (yes claims) to be independent is not reliable. Bad enough that by the time there’s a roster change the case has to be explained all over again. Even worse can you imagine what it would be like if these matters went into a special bench matter or the “finals list” / the equivalent in other High Courts? The term of the patent would expire. TM trials would be adjourned routinely and/or worse yet, once again courts would prioritise hearing commercial matters instead of matters where there is actual human suffering.
I’m pretty sure this comment, if published, will meet Prashant’s favourite rant of “why are you anonymous”? But one, don’t give people the option then, SpicyIP and two, I’d much rather be anonymous so that I can avoid the personal attacks on my criticism of the post because I will probably also be accused of brown nosing with Justice Manmohan Singh and/or earning my money from my IP practice (the horror of it all – a lawyer that earns money).
Lastly, please SpicyIP – we love reading your posts and esp. since 2020 seems to have kickstarted some good regular activity on the blog again. But can it please be civil discussions?
Very unfortunate language
I think the views of IPAB and its functioning may be different with each other but to speak ill of a fellow professional in such manner is wholly unacceptable and it would be really unfortunate if it is not handled with professionalism and grace and an earnest apology would not be out of place.
Hi Satish,
Since you are the only one commenting on your name, I thought I should reply to you – I am curious as to which sentence or word you found to be “ill” of “wholly unacceptable” – please do point it out to me.
Regards,
Prashant
Dear Prashant – i find the words “I am not surprised – Arun’s firm makes a healthy living by filing matters before the IPAB” to be a personal attack on Arun Mohan. It suggests that he wrote the post to promote his personal interests as a lawyer practicing before the IPAB. I don’t know Arun (but knew his dad Mr. Mohan briefly through my mentors in the profession – a very nice gentleman) and am holding no brief for him. But sometimes i feel that you have an inability to accept another’s view dispassionately and you would go to any extent to dispute the other person. In discussions, aren’t counterpoints inroads to learning? You need not be the best in every argument or your argument need not be the only correct one. Your counter posts often rubbish the contributor with harsh language and there is a superior and righteous tone through your language – it does not leave the one at the receiving end with a good feeling. We are all colleagues and stakeholders in the IP profession – you, an IP academic and we who you rubbish to be in denial, IP lawyers. There is no need to publicly rubbish another one to drive home your point.
Hi Latha,
Regarding Arun’s post – as you may know, we do require practitioners writing for the blog to make disclosures about a potential conflict of interest. I have noticed that it is not being followed for most part. It was unethical for Arun to write that post without making a disclosure that he has a significant practice before the IPAB. Most of our readers do not know that fact and it is my duty to point it out. I do not see how stating a fact about his practice is a personal attack. Also there is nothing unethical in Arun trying to defend the IPAB because it is in his personal interests – In my view it is completely ethical for a lawyer to try and defend his professional interests. And let us not get into public critiques of each others writing styles as you may not be able to digest my critique of your legal writing. We all have our styles and it enriches the discussion.
Regards,
Prashant
Dear Prashant – You have every right to criticize my legal writing, as I have of you. I am not afraid of criticism – it helps me grow. 😊
Latha – we both know that you can’t handle criticism very well, more so on public platforms – as you yourself have demonstrated above. 🙂
Regards,
Prashant