Proposal to abolish Intellectual Property Appellate Board (IPAB): Tribunal Reforms Bill 2021

In 2015 the Government of India started the process of rationalisation of all existing tribunals. By way of the Finance Act, 2017, the Government abolished or merged seven tribunals with the existing tribunals based on similarity or types of the work performed by them and the number of tribunals in India were reduced from 26 to 19. The rationale followed in the first phase was to close tribunals which were not necessary and to merge tribunals with similar functions.

To further streamline the existing tribunals, the Government has proposed a Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 to abolish 5 more tribunals including the Intellectual Property Appellate Board (IPAB). The Bill provides a mechanism for filing appeals directly to the Commercial Court or the High Court, as the case may be. It is pertinent to mention here that the Hon’ble Supreme Court has from time to time deprecated the practice of ‘tribunalisation’ of justice in India and filing of appeals directly from tribunals to the Supreme Court. Some of the noteworthy cases on this point are S.P Sampath Kumar versus Union of India (1987) 1 SCC 124, L. Chandra Kumar versus Union of India (1997) 3 SCC 261, Roger Mathew versus South Indian Bank Limited (2020) 6 SCC 1 and Madras Bar Association versus Union of India and another (2020) SCC Online SC 962.

The statement of objects and reasons of the Bill states that the tribunals that were proposed to be abolished by the Bill are of the kind which handle cases in which public at large is not a litigant or those which neither take away any significant workload from High Courts nor provide speedy disposal. Many cases do not achieve finality at the level of tribunals and are litigated further till High Courts and Supreme Court, especially those with significant implications. Therefore, these tribunals only add to another additional layer of litigation.

IPAB was constituted on September 15, 2003 inter alia to hear appeals against the decisions of the Registrar under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. The jurisdiction of IPAB was later extended under the provisions of the Patents Act, 1970 in 2007 and under the provisions of Copy Right Act, 1957 in 2017. It is interesting to note that appeals in IPR cases were vested with High Court before this Board was created. As such, the proposal to abolish IPAB would amount to restoring the status quo and all the cases pending with IPAB would now be transferred to the jurisdiction of the commercial courts or the High Courts.

It is not clear at this stage whether it is a step towards establishment of special courts like Patents Court within the commercial courts or the high courts or this will cause demise of the specialised appellate authority for IPR matters including Patents and trademarks. Creation of IPAB was a conscious decision to bring the best experts in the field of IPRs as technical members who would be helpful in adjudicating the technical and complicated scientific matters, particularly patent appeal cases while teaming up with experienced High Court judges. It not denied that the during the last decade or so, many landmark and path breaking judgements were delivered by IPAB, which not only helped various litigants but also hastened the process of speedy delivery of justice. Some of the decisions of IPAB even helped in streamlining of the work processes of the Patent and Trademark offices. Having said that, it is also not denied that for the past many years, the Government found it difficult to fill up the posts of the Chairman and technical members of IPAB to ensure achieving the objectives for which it was created. The IPAB remained non-functional due to vacancies for over two and half years prior to January 1, 2020 when, by the intervention of the Supreme Court of India, the term of the superannuated Chairman was extended.

If the attempt to abolish IPAB is directed towards the establishment of special IP courts within the commercial court system of high court, then it is a welcome move towards strengthening the IP protection and enforcement system in India and it aligns with the National IPR Policy of the Government of India announced in 2016. However, if this move is not connected to those policy objectives then the U-turn by the Government would be a step backward as it will take some time for the commercial courts to adjudicate on the specialised appeal /revocation / rectification matters under patents, trademarks and copyright law. If standing of a wrong patent/trademark monopoly is harmful, then the denial of a good patent/trademarks is equally harmful to the economy, industry, innovation and the public at large.