We’re pleased to bring you a guest post by Praharsh Gour, highlighting the recent Call for Applications put out for the post of the IPAB Chairperson, along with AIPPI’s application for extending the incumbent Chairperson’s tenure yet again. Praharsh is a graduate from Hidayatullah National Law University, Raipur and is presently an LL.M. candidate at the Faculty of Legal Studies, South Asian University, New Delhi. He’s also co-authored two posts on the blog previously, which can be viewed here and here.
A New IPAB Chairperson? Maybe, Maybe Not
On 21st August, 2020, the Department for Industry and Internal Trade (DPIIT) called for applications for the post of the Chairperson of the IPAB. This comes 11 months after the last regular posting terminated, and almost 8 months after Justice Manmohan Singh’s extension (post his age of superannuation), was directed by the Supreme Court. Presently, with approx. 20 working days left in the incumbent chairperson’s extension term, the application deadline for the position (18th September 2020) is just 3 days prior to the end of Justice Singh’s extension term (21st September 2020). From the above, it seems that the DPIIT is open to the possibility of the IPAB having yet another period of having no chairperson – unless of course they act in record time and finalise a selection over the weekend of 19th-20th September. As Prashant and Prannv had calculated in an earlier post, “in its 17 years of existence, the IPAB has not had a Chairperson for a cumulative total of 1,130 days!’ It’s worth noting that the Delhi High Court has reprimanded the government in the not so recent past, for not taking timely measures to address the problems arising from such vacancies. As readers would know, the issue of vacancy of important portfolios in the IPAB isn’t a new one. Only recently the question of vacancies of different technical members was somewhat addressed. (Refer to Prashant’s post on the controversy surrounding these appointments here.)
Meanwhile, shortly prior to the DPIIT’s call for applications, there was an interim application asking for Justice Singh’s tenure to be extended yet again, filed by the International Association for the Protection of Intellectual Property (AIPPI – Association Internationale pour la Protection de la Propriété Intellectuelle) on 6th August, 2020. The application (No 73597/2020) is listed for hearing by the Supreme Court tomorrow (24 August 2020), and is a part of the on-going writ in the AIPPI (India Group) v. Union of India. Prashant in a previous post expressed serious concerns about the writ filed by AIPPI and the consequent order granting Justice Singh the extension which he is currently serving.
It’s to be noted that the currently on-going and soon to expire extension was supposed to have been an interim arrangement, granted by the Supreme Court under the assumption that the “appointment process of the new Chairman of the Board according to law is likely to be complete soon.” Will this ‘interim’ arrangement be extended once again, given that the position is likely to be vacant once again? The Supreme Court has earlier held that the post of Chairman of Intellectual Property Appellate Board (IPAB) cannot be allowed to be vacant”. However, given that the DPIIT has subsequently put out the call for application, however belatedly, it’s also possible that the Supreme Court views that there is no longer cause for concern of (long period of) vacancy, and/or that it to be more desirable to get a regular appointment to the post, rather than delaying the whole (regular appointment) process yet again.
It is of course worth noting this development in the context of the various developments that have taken place with the IPAB in the recent past – from the vacancy issues mentioned above as well as lack of technical members on the bench, discussed by Rishabh here, here and here, to the appointment issues as covered by Prashant here and by Pankhuri here. And of course, Prashant’s petition to do away with the IPAB altogether. Whichever side of the fence one is on, it would be hard to deny that it is high time the appellate landscape for IP matters in India undergo a reform. In fact one can refer to the response of the office of the Controller General, which is in agreement with Prashant’s apprehensions about the IPAB, reflecting the call for reform not just by IP enthusiasts and practitioners but also by the bureaucracy as well.