We’re pleased to bring to you a guest post by Justice (Retd.) Prabha Sridevan on the shutting down of IPAB (our recent series of posts on which can be viewed here). Justice Sridevan needs no introduction – she served as a judge of the Madras High Court from 2000 to 2010 and as the Chairperson of the IPAB from 2011 to 2013 and her stint as both resulted in a number of significant IP developments, which we have covered here, here, here and here. A more elaborate profile and Prof. Basheer’s interview of her published on the blog in 2018 can be viewed here and here. She has previously also written a guest post for us, which can be viewed here.
Regarding the Scrapping of the IPAB
Justice (Retd.) Prabha Sridevan
I have read the post for closing the IPAB and the counter to keep it open, and the rejoinder to it and the reply. I do not intend to weigh in the two views and give a “judgment”, nor to enter the fray.
I have long held the opinion that the IP jurisdiction should be restored to the High Court. Please see “Whose Tribunal is it anyway“, so this is just a reiteration. Since it is an opinion I have passionately held to, I feel I must speak.
The IPAB was formed really unformed. It managed to survive miraculously, but it is time we transplant the core jurisprudence back to the High Courts and allow it to beat heartily. I do not think it was ever meant to be really enabled or empowered. I will mention just two points inter alia many hard facts; the infrastructure is inadequate and I am polite. Appointments to the posts of Chairman, and Vice Chairmen and Technical members are delayed. Please see my report filed in the Madras High Court.
I have consistently held that ‘public interest’ is inextricably twined with Intellectual Property (please see my speech Life of P.I.). Therefore, only Constitutional Courts have the jurisdictional space and power to factor that in. I believe that the jurisprudence cannot be based merely on an adversarial mode but must partake of the inquisitorial mode. This ability, a writ court has, but not a tribunal created under an ordinary Act. The orders of the IPAB, even an order to adjourn a matter (for instance the Pegasys) drew the eyeballs of the media abroad. Such being the case, the jurisdiction should go back to the High Courts. Granting injunctions, vacating wrongly granted injunctions, revoking patents and considering counter-claims can all be heard by the same authority, i.e. the High Court, who can summon the records from itself, give directions to the Government, appoint amici and experts, expand the locus, do everything to ensure the protection of rights enshrined in Part III of the Constitution and realisation of the principles spelt in Part IV.
In the paper ‘Swine Flu, Bird Flu, SARS, Oh My! Applying the Precautionary Principle to Compulsory licensing of Pharmaceuticals under Art 31 of TRIPS‘ by Jennifer R. Andrew, we were asked to visualise a scenario in 2015 when a superbug, the likes of which we have never seen is spreading and asks if it would be alright to issue a preventive compulsory license when the patentee pharmaceutical company is sitting tight on it. This scenario is upon us a few years later and a superbug the likes of which we have never seen is spreading, it makes wimps of all the brave warriors in our system.
In an op-ed (‘Patents and protecting public health‘) written by Dr. Srividhya Ragavan and I, we referred to Kaushik Sunder Rajan’s book ‘Pharmocracy‘ where he said “that in a world in which the structure of monopolistic drug development is the norm, there are consequences for both health and democracy, since the initial rationale of patents as a purely instrumental monopoly in public interest is subverted and forgotten. The patent system is misconstrued as serving the patent owner. Similarly, there is wide misconception by trade lobbyists that trade obligations are subservient to sovereign rights. Neither of these propositions is correct. That is why the question raised in the petition filed by Prof. Basheer is not to be lightly taken. It is not only about the right to health but also about the state’s sovereign right to preserve public health and duty to fulfill a Constitutional mandate.” The petition referred to is the PIL filed by Professor Basheer regarding Form 27. Today with a dark cloud looming over me, I will feel safer if this duty is solely vested with the High Courts and not in piece with a tribunal that has been sitting “as and when”. What do you think?
This is just a repetition of what I have said or spoken or written in these many years. Prof. Basheer will be truly happy if someone rolls up their sleeves and acts.
I am paraphrasing part of my comment to Prashant’s post here and would be very interested in your views. I hope you will not penalise me by ignoring my comments for choosing anonymity!
The High Courts don’t have enough appointments, and they definately don’t have the technical expertise. I have experience where scientific advisors, even one who claims (yes claims) to be independent, is not reliable.
Roster changes leave matters to be argued over and over again. Even worse, if these matters follow a judge that has heard it extensively, it will go into a special bench matter (i.e. only on Fridays or relegated to a time slot when they’re never taken up or taken up for 15 minutes – at least in the Delhi HC).
What if the matter goes into the “finals list” / the equivalent in other High Courts and never see the light of day?
In all of these situations, the term of the patent would expire. Where the rectification of a TM is concerned, if the matter is not heard and a connected lawsuit is ongoing, TM trials would be adjourned routinely.
Worse yet, if courts do sit up and take notice and decide to hear these petitions, once again courts would prioritise hearing commercial matters instead of matters where there is actual human suffering.
IPAB has many defects in its efficient functioning but how does your solution help these problems?
Specialised subject matter requires Presiding officers with continuous and technical experience. Whereas, High Court/Commercial Court roaster would keep changing every few months. So determining technical disputes may prolong, and add up further appeal litigations. Further, establishing IPAB in New Delhi, Mumbai and Kolkatta is also a good idea. I advise the ministry to rethink its strategy. The strategy seems like, Ministry is running away from going forward, rather sidelining towards few practitioners and inefficiency on the IP policy.