Axed!

IP practitioners warn of dire consequences as Intellectual Property Appellate Board gets the chop. Gautam Kagalwala reports

See also: Closing IPAB goes against plan to improve ease of doing business

After nearly 20 years marked as much by setbacks as achievements, the axe has fallen on the Intellectual Property Appellate Board (IPAB) with the passing of The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which will abolish the board. Along with the IPAB, the ordinance abolishes four other tribunals. The government reasoned that the tribunals had not achieved their objectives of meting out faster delivery of justice. It also reasoned that many disputes did not achieve finality at the tribunal level, and decisions went on to be challenged at high courts and the Supreme Court, thus not reducing the burden on the courts.

However, some legal experts say the IPAB should not have been part of the ordinance, and that abolishing it will delay access to justice for IP holders. They also argue the IPAB was beginning to show real results. “[This] will deprive IP holders of a specialised tribunal that was created in the first instance to facilitate expeditious disposal of appeals,” says Krishna Sarma, the founder and managing partner of Corporate Law Group in New Delhi.

With the jurisdiction of the IPAB being returned to the courts, an additional burden will be placed on a judiciary that was already dealing with a large backlog of cases even prior to the arrival of the pandemic. The courts have said that their problems originate from the low ratio of judges to the country’s population – which is one of the lowest in the world – and the dismal amount of manpower and infrastructure provided to them.

“The five high courts that exercise jurisdiction over the existing Indian Patent Offices (IPO) have a huge pendency of over 1.3 million cases,” says Sarma, who calls the abolition move unproductive. “IP holders are rightly concerned that abolishing the IPAB will lead to delays in adjudication of time-sensitive patent cases, and thereby denial of justice.”

The IPAB came into creation with The Trade Marks Act, 1999, and was set up in 2003 with the powers and status of a civil court. The new ordinance scrubs the name of the appellate board from the Patents Act, 1970, and substitutes the name with “registrar or high court” in The Trade Marks Act.