Top bureaucrat backs petition to scrap India’s appeals board
India’s controller general’s office has approved a petition that calls for the Intellectual Property Appellate Board (IPAB) to be abolished, it was revealed on Monday, August 10.
In May, legal commentators and bloggers at Spicy IP, Prashant Reddy and Rahul Baja, sent a petition to the Ministry of Commerce, arguing that the board should be closed down because it was “non-functional and poorly designed”.
The petition recommended that the functions of the IPAB are shifted back to India’s high courts and commercial courts. The Ministry of Commerce sent the petition to the controller general of patents, designs and trademarks, Shri Gupta, asking for his comments.
Reddy revealed that when he accessed the comments under India’s Right To Information Act, he found that the controller general’s office agreed with most of the points in the petition. According to Reddy, it is rare for Indian bureaucrats to speak in such categorically clear terms in favour of reform.
The officials commented on the futility of splitting jurisdiction between the IPAB and the high courts, writing that although appeal jurisdiction is with IPAB, petitioners often approach the high courts instead. They added that while most opponents file petitions at the IPAB, matters ultimately reach the high courts when defendants bring infringement suits and counter-claims, resulting in fewer cases ending up at the IPAB.
They wrote: “Thus ultimately most patent matters are litigated in the high courts only and some cases even land up in the Supreme Court... Thus, for avoiding overlapping litigations, shifting appellate functions back to the high courts appear justified”. They also noted that it would be better to shift all appellate functions back to the high courts, which functions across the country while the IPAB operates from Chennai and Delhi only.
The officials stated that the IPAB does not satisfy the technical expertise requirements to deal with subject fields in IP litigation and referred to the superior ability of the high courts to address scientific issues in patent litigation. Reddy noted that the office recommended that the Ministry of Commerce enters into discussions with stakeholders about this issue.
Trouble at the IPAB
The IPAB was set up in 2003 but has struggled to create the necessary infrastructure and to appoint long-standing technical members and chairmen. The post of chairman is vacant and the file accessed by Reddy revealed that the Chief Justice of India received three requests last year to nominate a candidate for the post. In October 2019, Delhi High Court judge Prathiba Singh requested information on the state of the IPAB from the Department for Promotion of Industry and Internal Trade.
Back in July 2019, Judge JR Midha of the Delhi High Court ordered the IPAB to clear its backlog, which numbered 3,935 cases while key posts remained vacant. At the time of the July order, the IPAB had not heard a single case relating to copyright since it was established and there had been no technical member for trademarks in place since December 2018.
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