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IMPACTS OF ABOLITION OF INTELLECTUAL PROPERTY APPELLATE BOARD – AN ANALYSIS

Introduction

The Intellectual Property Appellate Board (hereinafter IPAB) was abolished on 4th April 2021 by the President through the promulgation of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (hereafter ordinance). The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, which stipulates the abolishment of IPAB and 4 other tribunals, is pending in the Lok Sabha and could not be taken up for discussion in the previous session of the Parliament. Thus, the President, using his powers under Article 123(1) of the Indian Constitution, promulgated this ordinance to give effect to the contents of the bill.

The IPAB, which was established in 2003 under the provisions of Trade Marks Act, 1999, was primarily responsible for hearing and deciding the cases relating to intellectual property rights such as copyright, patent, geographical indication, etc. The IPAB heard appeals against the decisions of the registrars of copyrights, geographical indications and trade-marks and the controller of patents. With the abolition of the IPAB, these cases will be transferred to the various high courts and the commercial courts. This article seeks to analyze the impacts of the scrapping of the IPAB.

Reasons For The Abolition

The statement of Objects and Reasons of the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, provides several reasons for the abolishment of the tribunals. The statement provides that the scrapping of the tribunals will help in reducing the burden on the state exchequer and will also address the problem of lack of sufficient manpower in these judicial tribunals. Furthermore, the statement also mentions that the scrapping of these tribunals will not add any significant burden on the high courts as many cases decided by the IPAB are “litigated further till high courts and Supreme court, especially those with significant implications.

However, the inefficiency of the IPAB might also be attributed to the lack of resources allocated to it. In the entire period of its existence, the IPAB didn’t have a chairman for a cumulative of 1130 days. Furthermore, between 2016 to 2020, several posts of technical members were lying vacant in the IPAB which led to unnecessary delays. The government had changed the provisions for the appointment of the members of the IPAB in 2017 through the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017. However, in the case of Rojer Mathew v. South Indian Bank Limited & Others[i], the Supreme Court held the new framework to be unconstitutional and it was only in 2020 that the government came up with the new revised framework. Several posts could not be filled during this period which restricted the efficiency of the IPAB.

Wider Powers Of High Court

With the abolition of the IPAB, all the cases pending before the IPAB will be transferred to the various high courts. Similarly, all appeals which were made before the IPAB will now have to be made before the concerned high courts. Only the matters relating to the publishing of work as well as the cases concerning a shorter term of a copyright in a foreign country than the period prescribed in the Copyright Act, 1957, will be dealt by the commercial courts or the Commercial Division of the appropriate high courts.

The high courts have a wider jurisdiction and authority. The high courts also lay emphasis on basic constitutional and human rights while deciding the cases. Thus, the high courts are likely to keep the larger public interest in mind while deciding the cases.

However, even after the abolition of the IPAB, the cases involving the larger interest of the general public are likely to end up before the Supreme Court. Most of the cases involving the element of public interest arise in relation to patents concerning medicine and other health products. Such patents are applicable throughout the country and hence the Supreme Court has more suitable jurisdiction and powers to settle such cases.

Furthermore, even when the IPAB was existing, appeals against its decisions could be made before the High Court as well as the Supreme Court. The Government of India, through a press release issued in December 2019 had clarified that the applicants of intellectual property rights could directly file a Special Leave Petition against the order of IPAB before the Supreme Court.

Excessive Burden On High Courts

The scrapping of the IPAB will add a huge workload on the already over-burdened high courts. In 2020, the IPAB disposed of 122 cases relating to trademarks, 199 cases relating to patents and 34 cases relating to copyright. But now all the cases that could have gone to the IPAB will have to be heard by the various high courts. The high courts are already facing acute shortage of judges and several posts are lying vacant. At this juncture, this extra burden will only add to the existing backlog of cases pending before the various high courts.

Furthermore, the high courts will have to study the cases which had been pending in the IPAB before taking them up for hearing. Thus, these cases are unlikely to be taken up for hearing for at least the next six months.

The TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereafter TRIPS) is an international agreement that was signed on 15th April 1994 and became effective on 1st January 1995. All the member countries of the World Trade Organization, including India, are parties to this legal agreement. Section 41(1) and (2) of the TRIPS agreement, read together, stipulate a mechanism that can ensure speedy remedies and can avoid unnecessary delays in cases of infringements of intellectual property rights. The primary reason behind this fast-track mechanism is that it acts as a deterrent to and prevents further infringements. However, with the scrapping of the IPAB, appeals will have to be made directly before the high court having the requisite jurisdiction. Considering the heavy backlog of cases in the high courts, this might lead to procedural delays. Section 41(2) of the agreement also provides that the enforcement procedures should not be “unnecessarily complicated or costly”[ii]. This could, however, become a reality in the wake of the scrapping of IPAB. The government might have to justify the abolition of IPAB to the international community.

Level Of Expertise

Intellectual Property cases are generally more complex than civil and criminal matters and it requires a reasonable level of expertise to settle them. IPAB was created specifically for the purpose of dealing with intellectual property-related cases and hence such judges were appointed to the tribunal which had a high level of expertise in intellectual property matters. For example, Justice Manmohan Singh, who was the Chairman of IPAB when it was abolished, dealt with several trademarks and copyright issues during his tenure as an advocate and presented several papers concerning intellectual property. However, high courts deal with all types of cases and hence lack that specific level of expertise needed for deciding intellectual property cases.

Conclusion

The abolition of IPAB seems to be a hasty decision as it might lead to unwarranted delays in the cases of intellectual property infringements. Instead of outrightly abolishing IPAB, greater emphasis should have been given to its proper management. The argument that most of the cases decided by IPAB, and particularly those having significant implication, end up being heard before the Supreme Court, does not seem idealistic as it is one of the implied functions of all the lower courts/tribunals to ensure that only the most significant of cases reach the apex court while the rest are decided at the lower level itself.

But now that the IPAB has been abolished, the high courts must be provided with the necessary manpower to deal with the increased workload. While the IPAB dealt with the intellectual property cases on a primary basis, the high courts will not take up these cases on a priority basis. Thus, these cases might not be dealt with the urgency that they deserve. To address this problem, the government must consider constituting a specific Intellectual Property bench in the high courts. Such a bench will specialize in the intellectual property matter and will facilitate the speedy disposal of cases. Timely appointments and necessary infrastructure will help in fast-tracking the process of deciding the cases.

[i]2019 SCC OnLine SC 1456 [ii]Ibid


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This article has been written by Gautam Badlani. Gautam is a first year BBA LLB student at Chanakya National Law University.