The Case for Keeping the IPAB Open – Part II

I am compelled to draft a reply to Prashant’s response to my post (which in turn was a response to the initial post by him and Prannv arguing for the shutdown of IPAB).

The bulk of my ire is against the allegation that I have written my last post only because I make a living off the IPAB. I must state that the courts, especially the High Courts are substantially the means of my daily subsistence. Therefore, my views against transferring matters to the High Courts are strictly personal. Such manner of personal imputation towards other authors is entirely uncalled for and not in keeping with the spirit of this website.

Prashant relies on an article by Hon’ble Justice Prabha Sridevan which laments the lack of due process in appointments, which is a grievance espoused by all stakeholders. This is a rather old article written in 2011, subsequent to which the trend of specialized tribunals stands advanced irrevocably. This is best confirmed in an interview given by Hon’ble Justice Prabha Sridevan herself to this website in 2018, in which she says “I have said before and I say it to you now the IPAB is the most important tribunal from a global perspective”. The issue with appointments cannot be a cause to scrap an institution of such considerable international standing. In any event, the thrust of my earlier article was only to point out that the faults in appointments cannot be laid on the IPAB, which has been a victim of methodical bureaucratic red-tapism.

As for Prashant’s views on first generation lawyers and lawyers from Mumbai being in favor of scrapping the IPAB, such views apart from being unsubstantiated and unnamed, cannot be the basis to wish away an institution that has become a part of the IP jurisprudence framework. As for Prashant’s views on how the IPAB “mucked” up the Novartis order, it is rather futile to reiterate that any judgment subject to international scrutiny will have hard-hitting criticisms, and that is inevitable in an adversarial system.

As for allegations on me trying to score brownie points with the IPAB or the Chairperson, these are again entirely misplaced. The point I made was that transferring matters back to High Courts from the IPAB which is headed by former Judges of the High Court does not make sense. The 2015 judgment of the Madras High Court has confirmed the primacy of the judiciary in heading the IPAB Benches. The burden on High Courts is undoubted, and the delay in disposing matters is also undoubted. To suggest that transferring matters to the High Courts would alleviate all issues with the IPAB is to simplistically view a rather complex issue with rose-tinted glasses. Whilst I do agree with Prashant that a High Court would never be non-functional due to the lack of judges, I fail to see why such a moving roster of judges and members cannot be created for the IPAB as well. This has been done with considerable success in Tribunals such as the NCLT, which sees numerous appointments pan-India as per requirements. My grouse is with the step-motherly treatment extended to the IPAB which is one of the few central Tribunals outside of Delhi.

The demand to scrap the IPAB would also create very complex issues, as the statutory framework and numerous decisions of the Supreme Court are predicated on the existence of the IPAB. Also, it must be remembered that the natural forum for IP disputes are District Courts, with only a few High Courts having original jurisdiction. To expect the district judiciary to deal with the issues before the IPAB seems contrarian to general prevailing consensus on having Benches with specialized IP knowledge.

As for the IPAB operating out of a “ramshackle” government building, the basis of comparison is rather unfair. The new block of the Delhi High Court is an ideal representation of the standards of judicial buildings. I do hope the IPAB does one day have premises of such standard, but for now, we can rest easy due to the new premises earmarked at Chennai. While it may not be a sparkling “T3” as demanded by Prashant, it would at least be a nicely functional T1.

As with all endeavors of the members of this website, I wish Prashant good luck with his proposed petition, and of course relish the opportunity to comment on it. I feel the primacy of efforts needs to advance appointments at the earliest, with Judges having commercial law exposure and technical members who will bring specialized knowledge to the table. This is an entirely plausible and immediate solution, which would put to rest this controversy. I am also not going to be commenting any further on this issue, as the efforts on this issue clearly need to be expended elsewhere.

On a side note, I must highlight something Shamnad said in one of my earlier posts:

“At this point, I should mention – despite differences of opinion on the matter, it’s extremely refreshing to see pleasant, polite and mature communication from all sides, leading towards an active debate on the matter rather than attempts to silence or censor like we’ve had in the past”

Let’s never lose that spirit.