An obituary for the IP Appellate Board
NEWS Its tenure was a missed opportunity to develop the home-grown jurisprudence on patent law
CONTEXT On April 4, the President of India signed the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which resulted in shutting down the Intellectual Property Appellate Board and many other tribunals.
INTELLECTUAL PROPERTY APPELLATE BOARD (IPAB)
- It was India’s specialist tribunal for determining disputes relating to intellectual property (IP) rights.
- It was established under the Trade Marks Act of 1999, and later its jurisdiction was extended to hear patent cases after the Patents (Amendment) Act of 2002.
- Historically, appeals from the Intellectual Property Office (IPO), rectification and revocation applications were heard by the various High Courts.
- However, the Patents (Amendment) Act of 2002 divested these powers from the High Courts and extended it to the IPAB.
CHALLENGES FACED BY THE IPAB
- Since its inception, the institution has been involved in controversies. it has been the subject matter of judicial review before the various High Courts.
- These cases include a challenge to the constitutionality of the IPAB, petitions seeking filling up of vacancies before the High Court in Delhi and Chennai, and even a petition to the Supreme Court for extension of the term of the chairperson.
- Ever since its creation, IPAB has been perennially understaffed, its administrative staff often being on deputation
- IT remained headless for almost two years, in January 2018, the IPAB was given a head.
- The then chairperson of the Appellate Tribunal for Forfeited Property was given additional charge.
- The appointment of the technical member for patents, who brings the much-needed technical expertise that patent cases usually demand, was delayed.
- The tribunal beside being understaffed was also underpowered which resulted into poor infrastructural set up of the tribunal which further delayed the ongoing cases.
- The IPAB’s jurisdiction of cases was split between trademarks, patents, copyright, and geographical indication, where the predominant business pertained to trademarks. Thus, the workload of the IPAB was typically split between trademarks and patents with the former consuming much of the time. Not only did the IPAB juggle its time with the different forms of IP, but
- Apart from its daily work load, it also had sittings in five different cities, with just one chairperson who had to fly between them at times.
- The chairperson had to summon parties and papers to all these cities, which came at a substantial cost to the public.
Poor rate of case disposal:
- According to a recent study, the first decade of operation of the patents bench, saw a paltry disposal rate of about 20 patent cases a year. Nearly 70% of the patent cases filed were either pending at some stage or yet to be taken up for hearing.
- After the IPAB was set up, not more than 15 cases were transferred from all the High Courts to the IPAB.
- It is to be noted that tribunals were established with the primary aim of speedy disposal of cases by specialised experts.
SIGNIFICANCE OF IPAB
- The functioning of the IPAB was critical for the innovation ecosystem.
- Every patent granted by the Patent Office is a potential subject matter in appeal before the IPAB.
- An unjustified patent grant at the Patent Office, by error or oversight, can only be corrected in appeal.
- But now, with shutting down of IPAB, we will never know the number of unjustified patents that went unquestioned without an effective appellate mechanism.
- India stands as a shining example for its legislation in patent law.
- Some of these legislations are: retraction of product patents for pharmaceuticals and chemicals between 1970 and 2005, the anti-evergreening provisions or the robust compulsory licensing regime.
- Thus, it has offered the world a host of TRIPS-compliant flexibilities in its statute.
- But it has failed in developing a jurisprudence around these provisions.
- Therefore, the tenure of the IPAB will be remembered as a missed opportunity to develop the home-grown jurisprudence on patent law that is much lacking in India.
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