The End of the IPAB?

The first leg of the 2021 budget session concluded on February 15th, and among the bills introduced was a proposal to reform and reorganize the tribunals formed as a part of multiple Acts. The Bill argues that the Tribunals have not solved litigation issues and have mostly only added an additional layer of lower-level litigation, after which cases are appealed to the High Court and/or Supreme Court. The multiplicity of tribunals, the bill points out, also end up being a significant burden on the exchequer.

The Tribunals Reforms (Rationalisation and Conditions of Service) Bill proposes in effect, to abolish tribunals formed under the following Acts; The Cinematograph Act of 1952, the Copyrights Act of 1957, the Customs Act of 1962, the Patents Act of 1970, the Airport Authority of India Act of 1994, the Trade Marks Act of 1999, the Geographical Indications of Goods (Registration and Protection) Act of 1999, the Protection of Plant Varieties and Farmers’ Rights Act of 2001, the Control of National Highways (Land and Traffic) Act of 2002, and the Finance Act of 2017. The proposal allows for the transfer of all pending cases to the Commercial Court or the High Court, and a 3-month severance pay for Members of the tribunal.

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As we can see, almost every Intellectual Property Act comes under the Bill. It’s clear that the government of India does have objectives in introducing this reform- decreasing costs and streamlining the process of law are both admirable aims. It may even be as effective as advertised when it comes to more generalized forms of IP such as Copyrights or Trademarks.

A contention, one that’s partially responsible for the formation of the IPAB in the first place, has been made that cases coming to the IPAB under patents often deal with the merits of the technology the patent is trying to protect. Such technologies are generally on the cutting edge of research, and may not be easily comprehensible to those who don’t have constant exposure or updates on the field. High Courts are already at more than the full capacity, and expecting judges to add an additional bloc of highly specialized work to their already full schedules is likely going to result in some less than impeccable work. No disrespect meant to our Judges, who are surely working as hard as they humanly can- but every person has limits, and when push comes to shove trying to understand complex technology that may just be relevant to one case is likely to not be a good use of a judge’s time. In addition, it must be noted that IPAB handles objections to procedural matters, such as the grant of patent and supporting procedures like patents of addition and division. As per the Patents Act of 1970, the IPAB also handles compulsory licensing, but infringement claims are sent directly to the judicial system. This speaks to the specialized position of the IPAB.  

On the other hand, multiple sources have complained about the lack of functionality of the IPAB. The Appellate Board is infamous for being practically defunct until the appointment of J. Manmohan Singh in 2017. His tenure of Chairman saw the IPAB actually functioning as it was intended. His tenure was extended twice in deference to the role he played in streamlining the IPAB. The Supreme Court recently refused to extend his term again, leaving the IPAB without a competent Chairman and in the same position it was in while nonfunctional.

There’s clearly a need for Tribunal reform, but throwing out the IPAB altogether seems like an exercise in futility. It will merely increase the workload of the High Courts, which seems like a particularly wasteful thing to do especially when it comes to procedural matters of Patent grants. Perhaps the government would be better served by considering how best to keep Tribunals functional- weather by providing clear avenues of appointment, increasing retiring age, or decreasing the requirements for serving on the Board. Decreasing the burden on the exchequer will fail to be an effective measure if, at the end of the day, what you’re effectively doing is increasing the burden on the overtaxed courts.

Author: Varsha Valsaraj, Legal Associate at PA Legal.

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