Scrapping of the IP tribunal: The good, the bad and the ugly

India Today TV spoke to several members of the legal fraternity on the government’s decision to scrap five tribunals in the country including the Intellectual Property Appellate Board. Here’s what they had to say:

The central government last week, by way of an ordinance, scrapped the working of five tribunals in the country including the Intellectual Property Appellate Board established in 2003 to specifically deal with matters of intellectual property including copyright, trademarks, patents and geographical indications.

India Today TV spoke to several members of the legal fraternity on the government’s decision, including two former judges of high courts who have served as the chairpersons of the IPAB in recent times. Interestingly, not only the two chiefs, but even lawyers who often deal with IP cases remain divided on whether this was a good move.

We spoke to former Delhi High Court judge Justice Manmohan Singh, who was the last serving IPAB chairman, on his thoughts about the new government ordinance.

Justice Singh, to a large extent, criticised the scrapping of the tribunal stating that there was an international obligation under the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) to have a separate tribunal to deal with cases of intellectual property.

“In my opinion, the tribunal should not have been abolished,” Justice Singh said while highlighting that the all the cases pending before the tribunals will now go back to the commercial benches of various high courts.

“High courts are already short on judges. The Delhi High Court has a sanctioned strength of 60 judges but we only have 29 judges currently,” Justice Singh stated.

Aside from the added case load, Justice Singh also questioned how the scrapping of the tribunal will be perceived internationally. “The IPAB was created after amendments in the laws due to our commitment under the TRIPs Agreement. Other countries, clients may raise objections. Foreign solicitors and clients might question why IPAB was abolished,” he said.

On the flipside, Justice Prabha Sridevan, who served as the Madras High Court judge for 10 years and then as the IPAB chairman from 2011 to 2013, welcomed the government’s decision saying that the decision to scrap the tribunal was a “good move”.

Justice Sridevan stressed upon how the scrapping of the IPAB will allow for ‘public interest’ to once again become an important consideration in deciding IP matters.

“In cases of patents and pharma patents, public interest is a huge consideration. What a high court can do with its inherent powers, a tribunal that is circumscribed, cannot do. [In a tribunal], ideas like public interest and constitutional rights like access to health get defeated,” Justice Sridevan said.

Justice Sridevan remembers the famous Novartis case, which went on to become a landmark patent case after a seven-year long litigation battle.

“In the Madras High Court, Justice Balasubramanian and I were the bench that heard the Novartis petition. At that time, the patent also was not given. So they had filed two petitions one challenging the constitutional vires and the other challenging the non-grant of the patent. We told the lawyers . Sorabjee and Shantibhushan – that we will hear the constitutionality first and then the patentability. We were hearing the patentability when the IPAB was created and just like that from our hands, the case was taken and shoved into the IPAB,” she recalls.

When asked about the already overburdened high courts having to deal with more cases, Justice Sridevan said, “Every important case from the IPAB already goes to the high courts. People are not content with IPAB orders, which is why the approach high courts. Now, they will just directly go to the high courts. That’s the only difference.”

“I don’t think anyone understood the importance of IPAB,” Justice Sridevan said.

“And when I talk of the IPAB, I am talking of the jurisprudence that the IPAB was given to handle. If that jurisprudence goes back to the high court, I am really happy. The judge who is going to deal with the matter is not going to struggle for jurisprudence because the high court will provide him with it. And at any point of time, the high court can ask for expert help,” she said.

Senior advocate Abhishek Manu Singhvi, like Justice Manmohan Singh, criticised the Centre’s move to bring in this ordinance.

“This en masse and blanket abolition of diverse tribunals smacks of arbitrariness and blatant absence of application of mind. We created tribunals in the first place knowing the over clogged arteries of the high courts across the country. Secondly, that clogging has only increased because of over 33 per cent of all judicial posts at the high court level are at any given time vacant and unfilled. Thirdly, matters of intellectual property are complex and expertise oriented and take much more time than normal other civil or criminal matters.”

“It is inconceivable that even the best staffed high court in the country will have time to take up, much less dispose off, even a fraction of the IPR pendency. Similarly, the elimination of the Appellate Censor Board is a retrograde step because the release of a film cannot face the inherent tardiness of judicial adjudication. The Appellate Board was a useful first step to capricious Censor Board orders and again to expect the high court to become a screening body for viewing films defies imagination. I can multiply such examples, but they all show that this is an unthought or badly thought knee-jerk reaction,” Singhvi said.

He also raised a question at the government on taking the ordinance route. “This government’s favourite dictatorial tool is the ordinance route,” he said.

“Many of the points I have made would have been made with great vigour and to the obvious embarrassment of the government if a parliamentary debate had happened. They faced virtually unanswerable questions. Therefore, immediately after the Parliament had ended its longest session, the subterfuge of an ordinance is used and to add insult to injury, even the duration of the parliamentary session is curtailed,” Singhvi said.Live

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