Attempt to Abolish IPAB and its Impact on Adjudication Of IPR Matters

In order to streamline various tribunals, the Government of India has proposed a Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 (“Bill”) with an aim to abolish 5 (five) or more tribunals, including but not limited to Intellectual Property Appellate Board (“IPAB”). The Bill provides an organized channel for filing appeals directly to the Commercial Courts and the High Courts, as the case may be.

The major reasons for the elimination of the IPAB include that the board has not led to faster delivery of justice at a considerable expense to the exchequer and a hopeful reduction of burden on the exchequer along with addressing the issue of shortage of technical and supporting staff of tribunals and its infrastructure. Streamlining of the tribunals would economize considerable expenses and resources to the exchequer and would simultaneously lead to the speedy delivery of justice. The statement of proposals and reasons of the Bill state that the tribunals which are put forward to be abolished in this phase are of such kind, which neither takes away any significant workload from the High Courts nor are of such nature which handles cases where the public at large is indulged.

The IPAB was constituted on 15th September 2003 in order to hear the appeals against the decisions of Registrar under the Trade Mark Act and the Geographical Indications of Goods Act, thereafter the jurisdiction of IPAB was extended under the Patents Act and the Copyright Act as well. Prior to the commencement of the IPAB, the appeals in the Intellectual Property Rights (“IPR”) cases were totally vested with the High Courts, therefore the proposal of abolishing the IPAB would certainly amount to a restoration of the status quo and consequently, the cases pending with the IPAB would be transferred to the High Courts or the Commercial Courts accordingly.  

The creation of the IPAB was a purposive decision to bring on board,  the best expertise in the field of IPR as technical members possessing technical and scientific knowledge and would be helpful in adjudicating such matters, more particularly the patent appeal cases by teaming up with the experiences High Court judges. Therefore, it is unclear at the moment whether the implementation of this Bill is a step towards the establishment of specialized courts such as patent courts within the High Courts and the Commercial Courts or this will lead to the complete abolition of the specialised appellate authority for IPR matters including trademarks and patents.

The IPAB, during the last decade, has delivered many landmark and path braking judgements which have not only helped various litigants but also accelerated the process of speedy delivery of justice. Further, some of the judgements have helped in streamlining the framework of the patent and trademark offices. On the other hand, it shall also be noted that for many years, the Government of India was facing immense difficulties in filling up the posts of the chairman and technical members of the IPAB due to various legal challenges in the provisions concerning their appointment, in order to ensure foremost objective for which it was constituted. As a result of the same, the IPAB was non-functional for a pretty long period and there were delays and pendency of matters in the same until the Supreme court intervened and extended the terms of the superannuated chairman.

If the attempt to abolish the IPAB is aimed towards the formulation of special IP courts within the Commercial Courts or the High Courts, then it will be considered as a move towards intensifying the IP protection and enforcement system in India. However, if this step is not associated with the policies and objectives in the favour of the IP protection and enforcement system, then this turn around by the Government would be a step back towards the previous system and will consequently cause hurdles in adjudicating the specialized appeal/revocation/rectification matters under patent, trademarks and copyright laws as there would be lack of technical knowledge and expertise in the field of IPR in the Commercial and the High Courts.