Bill to abolish IPAB submitted in the Indian Parliament
On 13th February 2021, the Government of India introduced a bill in the Lok Sabha that was titled as the Tribunals Reforms (Rationalization and Conditions of Service) Bill, 2021. Through the introduction of this Bill, the Government is seeking to abolish various tribunals (including the Intellectual Property Appellate Board) and transfer their functions back to the country’s High Courts. The introduction of the said Bill was quite unprecedented and sudden as it was introduced in the Parliament without consultation with the public and the relevant stake holders i.e. IP practitioners, attorneys and advocates.
Brief History of IPAB:
The Intellectual Property Appellate Board (IPAB) was formed in the year 2003 with an objective to hear appeals against the decisions of the Registrar under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. Subsequently, in the year 2007, the Ministry of Commerce & Industry announced that Patent Appeals pending before the various High Courts, will stand transferred to the IPAB. Likewise, fresh Rectification Applications under the Patents Act, 1970, will also have to be filed before the IPAB. Subsequently, even matters pending before the Copyright Board were transferred to the IPAB for adjudicating. Thus, ample powers were granted to the IPAB to adjudicate multi-disciplinary matters relating to Patents, Trademarks, Copyrights and other Intellectual Properties.
It is to be noted that one of main objectives of forming the IPAB was to achieve effective disposal of IP matters and because they often involve technical issues, a board/tribunal comprising of technical members can effectively dispose-off such matters.
Role of IPAB in the field of Intellectual Property:
The IPAB has played a pivotal role in determining/rendering decisions to complex issues involving Intellectual Property Rights. These decisions have gone on to be landmark decisions in their respective fields, a few examples are as under:
- The landmark decision of Novartis A.G. related to Section 3(d) of The Patents Act, 1970, wherein the IPAB discussed about ever-greening of patents and held that the patentability of the subject product was hit by section 3(d)of the Act. (This was upheld by the Hon’ble Supreme Court).
- IPAB’s recent decision in December 2020 wherein it framed a Statutory License Fee order for radio broadcasters under Section 31 of The Copyright Act, 1957.
- The landmark N-95 decision rendered by the IPAB, wherein it stayed the use of a registered trademark N-95 and held that N-95 is a generic and descriptive term which is extensively used by members of trade and various other institutions.
- IPAB resolved the long standing issue of patents and software in Freid Allani’s application wherein it provided a pathway to patentability of software.
These are just a few instances of how IPAB decisions have impacted the IP regime in India. It is fair to say that the IPAB has proven its worth and has indeed contributed in speedy and effective hearing and disposal of matters.
Reasons against abolishing IPAB:
- Speedy disposal of issues relating to validity of patents, trademarks, copyrights, plant varieties etc. or any challenge to the orders of the Controllers/Registrars shall come to a standstill.
- The Hon’ble High Courts are already burdened with various pending cases and therefore, transferring all the matters back to the Hon’ble High Courts will result in undue delay (both procedural and substantive).
- Since the Hon’ble Courts are already burdened with a huge backlog of cases, an expeditious hearing in IP matters might not be possible and the same might result in lapse of rights. For e.g. patent matters are highly time sensitive as the life of a patent is for 20 years only and because of the delay, a patent may lapse even before the appeals or matters are heard by the Hon’ble Courts.
- The lack of a technical member in deciding highly technical matters will result in delay as well as ineffective adjudication.
- With all due respect, the Hon’ble Judges of the High Court as well as the Commercial courts may not be fully equipped to handle complex and highly technical matters involving scientific or mechanical processes.
Advantages of dismantling IPAB:
- Most matters decided by the IPAB are usually appealed in the High Courts. By transferring the power back to High Courts, the Government aims at reducing the judicial time that goes into filing an appeal in the appellate courts.
- The decisions rendered by the High Courts will be binding on the Registrar and the Controller and therefore, the process of granting trademark or patent rights will be streamlined.
- There might be chances that specialized benches may be allotted or formed in the High Courts for deciding IP matters (similar to specialized benches formed for adjudicating Tax matters, Criminal matters etc.).
- The new notification also seeks to transfer powers to the commercial courts. This might breathe a new life in faster disposal of matters relating to IP.
Today India is among the top 50 innovative countries as per the Global Innovation Index 2020 and it is a known fact that intellectual property spurs innovation. Dismantling the IPAB will not only adversely affect the IP regime but it may also have an adverse effect on the innovation environment as right holders will not have a streamlined mechanism that ensures security of their rights.
Today when the world is looking at India to be a top player in Innovation and Intellectual Property, it is only befitting to have a framework that is both, effective and speedy.