New Bill Proposes the Abolition of the Indian Intellectual Property Appellate Board
By Aditi Subramaniam - Associate Principal at Subramaniam & Associates (SNA)
The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021[1] (“the Bill”) was introduced in the lower house of the Indian bicameral Parliament in February this year. The Bill proposes that certain tribunals across different sectors of the economy - including the Intellectual Property Appellate Board (the “IPAB”) - be abolished. The Bill further proposes that mechanisms for direct appeals to relevant Commercial or High Courts be made available instead and that all pending matters also be transferred to such courts. To be enacted into law, the Bill must be passed by both Houses of Parliament and then receive Presidential assent.
The Bill does not provide rationale specific to the IPAB for this proposal. In its Statement of Objects and Reasons, the Bill refers to the failure of the tribunals in question in effecting “faster justice delivery” and states that they result in “considerable expense to the exchequer”. The Bill also raises the following issues:
1. That the tribunals to which it is directed do not adjudicate cases in which the “public at large is a litigant”;
2. That these tribunals do not decrease the burden of the High Courts;
3. That these tribunals do not speedily dispose of the cases before them;
4. That the decisions of these tribunals are often subject to multiple further appeals, and therefore that they serve merely to “add to (sic.) another additional layer of litigation” and,
5. That the administrative action necessary for the maintenance of these tribunals poses an unreasonable burden and often further delays the disposal of cases, such as when posts remain unfilled.
The IPAB was created under the Indian Trade Marks Act in 2003 and its jurisdiction was gradually expanded through to 2017 to include cases relating to patents, geographical indications and copyrights. The decision to establish an appellate board was based specifically on the concern that the High Courts were unduly burdened at the time. Statistics suggest that 1.3 million cases are currently pending before the five High Courts with jurisdiction over existing IP Offices. Unfortunately, the 18-year life span of the IPAB thus far has routinely been punctuated by long periods of non-functionality as posts for the Chairman, Vice-Chairman and various Technical Members remained vacant for months at a time, sometimes simultaneously. Despite this fact, and notwithstanding the pandemic, the IPAB disposed of 275 cases in 2020, with the average disposal rate of cases per month increasing from 26.7 to 48.5 after the eventual appointment of Technical Members in August 2020.
There are some compelling reasons to permit the IPAB to continue to function. India does not have specialised IP Courts, and IP matters are currently referred to commercial courts. The presence of a Technical Member is mandatory for the IPAB to hear patent cases. The IPAB has demonstrated an excellent record of reversing a number of refusals issued by the Indian Patent Office. Of the approximately 3793 cases disposed of by the IPAB, a mere 3% have been appealed, and only 1% have been reversed on appeal. Finally, the expenses of the IPAB amount to a mere 3.37% of the total budget of the Department of Promotion of Industry and Internal Trade[2].
There appears to be general agreement among most stakeholders that the IPAB is of significant value to rights holders in that can offer swift and relatively affordable access to justice. Abolition of the IPAB is likely to drive up costs and aggravate delays. Various industry and legal associations have made urgent representations before the Executive in this regard, the outcomes of which remain to be seen. In the meantime, the fraternity as well as rights holders are grappling with uncertainty as the Chairperson and Judicial Member of the IPAB has retired this month, resulting in yet another vacancy.
