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Breaking: Supreme Court Dismisses Application Seeking Extension of Justice Manmohan Singh as IPAB Chairperson


Hitting the (seemingly) final nail and ending the trail of extension requests, the Supreme Court via its order yesterday (12/02/2021 (pdf) ) dismissed the application seeking another extension to the tenure of the incumbent IPAB Chairperson. The application for extension was filed by the AIPPI (aka the International Association for the Protection of Intellectual Property) and was a part of a writ petition which was disposed of by the court after tagging it to Madras High Court Bar Association decision. Readers may recall that AIPPI is the same organization which had filed an earlier petition in 2019 through which the very first extension was granted to the incumbent Chairperson (Prashant has blogged about the petition and the subsequent extension here). 

The decision was given by a three judge bench comprising J. Nageshwar Rao, J. Hemant Gupta and J. S. Ravindra Bhat. While a detailed post assessing the implications of the judgement will follow soon, to quickly highlight in this post – the main points of  the decision center around clarifying the laws regarding the term of the IPAB Chairperson; the controversy surrounding the appointment of the incumbent Chairperson and clarifying that the Chairperson of the Board can also be a technical member. The last point above is especially interesting since it counters the reason for the first extension of the incumbent Chairperson via order dated 18.12.2019 i.e. “the post of Chairman of Intellectual Property Appellate Board (IPAB) cannot be allowed to be vacant.” Through the present decision, the court has suggested a solution to avoid the past situation of long vacancies in post of the Chairperson from raising up. We’ll expand on this in the coming post. 

An interesting fact surrounding this petition, is the head on collision between two gigantic IP organizations in India. As mentioned above, the petition was filed on behalf of the AIPPI, which proclaims to work towards development and improvement of laws for the protection of intellectual property. And on the other hand, among the multiple third parties which intervened in the present case one was Indian Drug Manufacturers Association (IDMA). While the judgement hasn’t named the organization specifically, an anonymous reader pointed out IDMA’s involvement in the dispute in a comment to a previous post. Now we know that the Indian courtrooms aren’t oblivious to such confrontations between organizations vouching for different levels of IP protection, for instance the DU Photocopy case, Novartis case, and the ongoing Sci-hub litigation, all have seen interventions by multiple non parties. However, such confrontations (until now) were limited largely to the substantive issues concerning the scope of intellectual property rights and interpretation of laws concerning them. This perhaps marks the first occasion where such organizations, representing different lobbies, locked horns with each other regarding appointment or rather re-appointment of a specific individual to a particular position. 

What happens to cases decided after the term had ended?

The petition at the heart of the decision was filed on 05.12.20 by AIPPI which is 26 days prior to the date of the incumbent Chairperson’s retirement. Subsequent to a few hearings, the application was listed, for the first time after the date of the incumbent Chairperson’s retirement, on 04.01.21 along with two other petitions (pdf). One of these other applications bearing number MA 2234/2020 in W.P.(C) No.279/2017, concerned extension of the incumbent Chairperson of a different tribunal (Telecom Disputes Settlement and Appellate Tribunal (TDSAT)). Interestingly, the court granted an extension of three months to the incumbent Chairperson of the TDSAT on the grounds of “peculiar facts and circumstances” of the case but did not make any mention of the above application by AIPPI! It must also be noted that no stay order was passed against the supposed effect of the Madras High Court Bar Association decision, by virtue of which the date of retirement of the incumbent Chairperson of the Board was fixed on 31.12.20. 

Therefore, in light of the above it is very unclear as to what is the authority by which the incumbent Chairperson has been hearing the matters, as recently as 12.02.2021. It also raises the question as to what shall be the fate of the matters disposed or even heard by the incumbent Chairperson in this duration? Given that the above decision by the Supreme Court seems to be silent on this, it may take further legal action to get some clarity on these questions.

Sidenote: I would like to thank one of our readers for pointing me towards the above order dated 04.01.2021. The reader wishes to remain anonymous. I would also like to thank Prashant for his inputs and comments. I would also like to point out that as per the IPAB cause list for 15.02.21, the incumbent Chairperson is still sitting on the bench and probably still hearing matters. 

2 comments.

  1. Anonymous

    Unfortunate that it had to reach a stage where the Supreme Court had to clarify what was already amply clear and succinctly captured in the decision of 27 Nov 2020, and also further clarified by the Orders on APTEL etc. TDSAT was a unique situation where the retirement of the Chairperson would have resulted in a Tribunal with no members whatsoever since al other members had already retired much earlier.

    Para 17-23 on this Judgmenet should hopefully make it clear that the term ended on 20. Sep 2019.

    AV

    Reply
  2. Anonymous

    I am really surprised that he has continued after 27th November 2020 but daringly after31st of December 2020 rather the particular attorney lobby continued to file cases before him and the IPAB was listing the matters without scrutiny thereby tossing every rule and trademark act in to tailspin, the scene which have been clearly visible from onwards September 2019 that IPAB was being used to meet professional ends of few attorneys and being operated as IPAB private limited. It is good it is going to be closed as attorneys were misusing IPAB forum as forum shopping.

    Further now divergent interpretations will emerge from different high courts on all ipr laws and the period from 2019 will be remembered as period of cut paste judgements given by IPAB and the judgments rendered by IPAB tribunal will go down in the history without much judicial substance, solely based on write ups submitted by the parties. Lately IPAB has followed the norm or particular motto of disposal in quantity and its judgments were poor on judicial substance.

    I know the connections of closing of IPAB linked to the persons who had prepared and brought hollow cut paste IPR policy in India

    Reply

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