Abolishing IPAB: A Leap In The Dark

In another shocking move by the Central Government, a new bill “The Tribunal Reforms (Rationalisation and Conditions of Service) Act, 2021” has been passed. The bill was suggestive of abolition of five tribunals including the Intellectual Property Appellate Board (IPAB) along with others namely Airport Appellate Tribunal, Authority for Advance Rulings, Appellate Tribunal under the Cinematograph Act and Plant Varieties Protection Appellate Tribunal. 

The reasoning given by the Government behind such pronouncement is to reduce the burden on the Public Revenue as well as to deal with the issue of scarcity of staff and infrastructure for the tribunals. Specifically, in the case of IPAB, the statement of objects and reasons of the bill stated that the board is just an additional layer of litigation as most of the cases having significant implications are not settled at the tribunal level and are further moved to High Courts and Supreme Court eventually. On the contrary, on 6th December, 2019 by a statement given by Press Information Bureau, Government of India, Ministry of Commerce & Industry it was stated that the applicants of all Intellectual Property Rights (IPRs) can directly file Special Leave Petition (SLP) before the Hon’ble Supreme Court against any order of Intellectual Property Appellate Board (IPAB). The rationalisation of various tribunals was introduced by the government in 2015 and initially the reason given for this was streamlining the structure of the judiciary. For this the tribunals having similar functions were to be merged together. The Finance Act 2017 led to reducing the number of tribunals from 26 to 19 by merging some of them. It was further theorized on the basis of data of past three years that tribunals neither provide speedy disposal of cases nor did they reduce significant work load of the Courts. 

The tribunals were setup under Article 323-A and 323-B of the Constitution of India after the 42nd Amendment in 1976. Taking a look at the background of the existing IPAB, it was established under a Gazette notification of the Centre Government on 15th September, 2003 to hear appeals under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. In 2007 it was further empowered under the provisions of the Patents Act, 1970 to adjudicate patent matters and in 2017 under the provisions of Copy Right Act, 1957 to adjudicate copyright matters as well. The IPAB is headquartered in Chennai and has sittings in Chennai along with Ahmedabad, Delhi and Kolkata. The Bench of IPAB consists of one Judicial member and one technical member. The Judicial member is an experienced candidate responsible for understanding the intricacies of law and the Technical member is there for understanding the technical nuances in the application of law in Intellectual Property.

The present scenario of pendency of cases in the Supreme Court, High Courts and District Courts is not unknown. In totality there are more than 4 crore cases pending in all these courts collectively. The lack of timely appointment of judges is one factor responsible for this plaguing. Also, the poor infrastructural conditions cannot be neglected. There are problems such as absence of proper navigation system in Courts, lack of hygienic washrooms, no facilities for the access by specially-abled people and lack of proper security for courts. Indicatively abolition of tribunals may lead to increased load on the existing poorly maintained judicial system.

This has led to a hullabaloo in the Indian Intellectual Property fraternity. It is so because the outcome of these measures is sceptical. If this bill is finally enacted the cases from IPAB will have to be transferred to High Courts and there shall be an expected delay due to such transfers. There shall also be confusion in the absence of technical members in contrast to IPAB, in the understanding of cases by the Judges. Also, due to these delays in some cases patentability would come to the end before the hearing of those cases. Therefore, the people related to the field of IP are ambivalent about such decision of the Government. 

The future of the patent disputes arising in India and their settlement is highly uncertain. If the government plans to come up with exclusive patent or trademark Courts within the High Courts throughout the country, which is highly unlikely, then it can be a good decision to do so. On the other hand, it is not to be forgotten that formation of the IPAB and other tribunals as well was a fully conscious decision. The best candidates in Intellectual Property Rights were brought in as technical members who have collectively with judicial members judged a number of complex scientific matters. A number of landmark judgements have been given by IPAB which has led to streamlining the working of Patent and Trademark offices and have also led to speedy Justice delivery. However, there has been a huge problem faced in filling the vacancies of the tribunals. In the case of IPAB, since its formation, it has been without a chairperson for 1130 days in total which is more of an administrative failure rather than organisational failure. The same is observed in case of Courts as well, and hence tribunals alone cannot be blamed.

In addition to this, it is to be remembered that before the formation of IPAB all the Intellectual Property matters were directed to high courts directly and there has been a history of pendency of these matters. IPAB was an attempt to give some speed to the resolution of these matters. If there is no further plan by the government to structure the settlement of   Intellectual Property disputes within the Courts this will be a step backwards and the pendency will further increase. Therefore, these reforms have to be well planned by the Government and not just an impulsive decision.

By-

Imran Rizvi

1st year LLB

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