Intellectual Property Appellate Board (IPAB)- end of its regime

Introduction

• The demise of the Intellectual Property Appellate Board (IPAB), India’s specialist tribunal for determining disputes relating to intellectual property (IP) rights, is symbolic of its tenuous life.
• On April 4, the President of India signed the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, shutting down the IPAB and many other tribunals for good.

Issues with IPAB

• Perennially understaffed and underfunded.
• Established under the Trade Marks Act of 1999, its jurisdiction was later extended to hear patent cases after the Patents (Amendment) Act of 2002.
• Historically, appeals from the Intellectual Property Office (IPO), rectification and revocation applications were heard by the various High Courts.
• However, the Patents (Amendment) Act of 2002 divested these powers from the High Courts and extended it to the IPAB.
• Though the patents side of the IPAB existed in theory since 2002, the Central government notified its functioning only in April 2007 after a rebuke from the Madras High Court.
  • The court was then hearing an appeal from the IPO regarding Novartis’ Glivec patent application which ought to have been heard by the IPAB.
  • After the notification, the High Court transferred Novartis’ petition and subsequently all other pending patent cases to the IPAB.
• Even though the IPAB has not been performing its adjudicatory function on the patent side regularly due to administrative reasons, it certainly has been the subject matter of judicial review before the various High Courts.
• These cases include a challenge to the constitutionality of the IPAB, petitions seeking filling up of vacancies before the High Court in Delhi and Chennai, and even a petition to the Supreme Court for extension of the term of the chairperson.
• After remaining headless for almost two years, in January 2018, the IPAB was given a head.
• One of the former chairpersons had publicly raised concerns regarding the judicial and institutional independence of the IPAB, and called for closing it.
• Not only was the IPAB understaffed, with its administrative staff often being on deputation, it was also underpowered, at times quite literally.

IPAB’s jurisdiction

• The IPAB’s jurisdiction of cases was split between trademarks, patents, copyright, and geographical indication, where the predominant business pertained to trademarks.
• Thus, the workload of the IPAB was typically split between trademarks and patents with the former consuming much of the time.

Conclusion

• The patents bench of the IPAB would have probably taken longer to constitute had it not been for the limelight brought by the Novartis case.
• In any case, the disposal rate for patents at the IPAB did not justify its continuance.
• Patent disputes owing to their technological complexity were the IPAB’s predominant time-consuming business after trademarks.
• In our study of the first decade of operation of the patents bench, we saw a paltry disposal rate of about 20 patent cases a year.
• Nearly 70% of the patent cases filed were either pending at some stage or yet to be taken up for hearing.
• After the IPAB was set up, not more than 15 cases were transferred from all the High Courts to the IPAB.
• Going by this disposal rate, it would have taken another decade to dispose of the pending applications, leave alone the new ones. The irony was that tribunals were established with the primary aim of speedy disposal of cases by specialised experts.

Way forward

• The functioning of the IPAB is critical for the innovation ecosystem.
• Every patent granted by the Patent Office is a potential subject matter in appeal before the IPAB.
• An unjustified patent grant at the Patent Office, by error or oversight, can only be corrected in appeal.