India: Curtains For The Intellectual Property Appellate Board (IPAB) - End Of A Possible Game Changer?

The Intellectual Property Appellate Board (IPAB) was recently abolished with the President of India's promulgation of the "Tribunal Reforms Ordinance, 2021". With the promulgation, ended a long hustle of the IPAB. IPAB, since its inception, during its due course encountered several hurdles that hindered its overall functionality, few being pivotal points that may have put the abolishment of IPAB in motion. However, in an era with the ever-growing IP awareness and importance, IPAB would have been a real game changer. 

The Intellectual Property Appellate Board (IPAB) was established by the Indian Government as an Appellate body on 15^th of September 2003 for hearing and resolving appeals against registrar under the Indian Trademarks Act, 1999 and the Indian Geographical Indications of Goods Act, 1999. Later on, from the 2^nd of April 2007, IPAB was further authorized to hear and resolve appeals for the orders and decisions made by the Patent Controller under the Patents Act, thereby transferring the powers of High court under the Patents Act and the Copyright Board. With this, the cases relating to patents pending before the High Court were transferred to IPAB.

The idea of having an Appellate Board appeared to lessen the burden of the High Courts. However, the orders passed by the IPAB could be challenged before the High Courts, and then the Supreme Court in cases where High Court orders had to be challenged leading to a very exhaustive prosecution process. To alleviate this, on December 06, 2019, the Ministry of Commerce and Industry in its press release 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)" implying that the appeals against the IPAB orders could be directly filed before the Supreme Court. This meant that the appeals could now be directly filed in the Supreme Court against orders from the IPAB, without first approaching the High Court. The Ministry of Commerce and Industry was in favor of the IPAB and affirmed the importance of IPAB with the press release.

IPAB, since its inception has been greatly criticized because of its underworking. Several reasons that have plagued the working of the IPAB have been constant, the reasons being delay in appointment of members and Chairpersons to the IPAB, questions as to their technical qualifications and pending of appointments with regard to technical members, which led to delay in disposing cases. This lack of basic infrastructure and lack of technical appointments to the IPAB added to the concerns of IPAB, which in recent years were resolved to an extent.

The inefficiency of the IPAB led to majority of stakeholders, including a former chairperson of the IPAB, Justice Prabha Sridevan favoring its shutting down. Recently, the Union Finance Minister introduced a draft bill in the Lok Sabha with the proposal of shutting down IPAB and transferring the powers of IPAB back to the High Courts, following which on the 4^th of April 2021, The President of India promulgated the Tribunal Reforms Ordinance thereby putting an end to the IPAB.

With the promulgation of the Tribunal Reforms Ordinance, certain appellate bodies were shut down and their functions were transferred to existing judicial bodies. With the shutting down of the IPAB, the cases would now be transferred back to the High Courts, which are already overburdened with the pending civil cases. It is to be noted that the High Courts have more than 55 lakh pending cases as of April 2021. In addition, even the High Courts are operating underpowered with more than 400 vacancies for the Judges to be filled. Bringing patents under the regular court system may result in prolonged litigation which would hamper the patent rights, given the limited period of monopoly for patents, further it would also over-burden the High Courts. This problem is not faced by the likes of trademarks and copyrights, where in the former registration may be prolonged continuously, while in the latter the scope of protection is sufficiently longer to accommodate litigation. One of the other reasons that was given for shutting down of the IPAB was the economics, as a lot of funding was spent on the IPAB over its lifetime as opposed to its generation of limited revenue, considering which shutting down of the IPAB seemed more appropriate.

It shall be noted that each bench of IPAB included a Technical member along with a Judicial member as per section 116 of the Patents Act, who would be a vital player in patent hearings, which is currently missing in the case of High Courts. The Judges appointed in the High Courts mainly hold a degree in Law and have little exposure in the field of science, thereby demanding an additional technical member during hearing of the patent appeals. An additional requirement implies hiring of new technical members fulfilling the requirements of the High Courts for hearing patent appeals, which would basically contradict the very reason provided for disposing the IPAB in the first place. With the shutting down of the IPAB, we need to see how the transfer of cases and their proceedings are carried out and also on how things pan out in the future.

With the increase in IPR awareness and proposed policy changes to promote IPR, one can expect a substantial increase in filings, examinations, appeals and so on. Given this, a fully functional IPAB would have helped in expediting matters related to not just Patents, but also Copyrights, Trademarks and Geographical Indications. Overlooking the shortcomings of the IPAB till date, if the IPAB was to be endowed with most of its requirements for its full functionality, could the IPAB play a major role in the field of Intellectual Property, especially patents? The abolishment of the IPAB at a time when there is an increased interest in Intellectual Property Rights may not be a wise decision. It is a view of majority of stakeholders that the IPAB be reinstated which would in turn aid in uplifting India's IP landscape, in an era where Intellectual Property rights is given utmost importance.

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