\n<\/p>\n
The \u201cWorld Trade Organization\u2019s agreement on trade-related aspects of intellectual property rights\u201d (TRIPS) gave rise to the IPAB. According to the terms of this agreement, all participants agreed on the need of robust intellectual property rights protection and enforcement. As a signatory to the TRIPS agreement, India formed a specialised board, with specialised brains in the field of intellectual property rights, to deal with intellectual property issues, namely the Intellectual Property Appellate Board. [1]<\/a> Prior to the founding of the IPAB, the High Courts had yet to resolve around 599 intellectual property disputes. A few of them had been pending for quite some time. \u201cThe need for the establishment of a specialized Board to deal with IP appellate matters was to ease the burden off the shoulders of the various high courts before which, such appellate matters previously, would lie.\u201d[2]<\/a> The abolition of the tribunal resulted in a rise in the total amount of matters to be handled by the commercial courts and the high courts, bringing legal management back to the beginning because the courts were already overloaded by the the amount of cases leading to pendency, and now the courts have to cope with more cases requiring special expertise. This abolition also had a negative worldwide impact. The main question now is whether it was a wise decision or a blunder by the lawmakers. [3]<\/a><\/p>\n One of the primary concerns for corporations revolves around the effective protection of their intellectual property. But the manner through which the abolition brought about change is unusual. It amends the Trade Marks Act of 1999 and the Patents Act of 1970 by inserting a series of forum substitutes. The phrase \u2018Appellate Board\u2019 in these two acts was primarily substituted by \u2018High Court\u2019. [4]<\/a> It simply transfers traffic from the Appellate Board down to the High CourtsIt leaves the existing jurisdiction and functions of the recipient forums untouched, with no effort made to restructure or incorporate this workload. Instead, the receiving forums were simply left to manage and conclude this task independently. [5]<\/a><\/p>\n But, did the board entirely fail to discharge its obligations over its almost 17-year tenure? Before addressing, it is important to recognise that every coin has two sides. It is also important to note that, despite the fact that the board or tribunal was formed with the mandate of resolving disputes with effectiveness and efficacy, the board didn\u2019t have a chairperson for a total of 1130 days.<\/p>\n It\u00a0is also\u00a0worth noting that the board was missing a technical member in 2016 and no endeavours were made to appoint one. Furthermore, following the merger of the copyright board and the IPAB, it was agreed upon that a technical member to deal with copyright infringement issues would be appointed; however, no such person was recruited. The problem of appointment was raised by the Delhi High Court in the case of Mylan laboratories limited v. Union of India<\/em>[6]<\/a>, in this instance, the Hon\u2019ble court emphasized \u201cthe absence of technical members appointed specifically for copyright cases, as well as the prolonged vacancy of technical members in the realms of trademarks and patents. This extended period of vacancy has led to a backlog of cases, causing significant delays that have negatively impacted the rights of intellectual property holders\u201d.[7]<\/a><\/p>\n Its also important to note that the 161st report of the Parliamentary Standing Committee on Commerce, which assessed India\u2019s Intellectual Property Rights framework, was submitted to both the Rajya Sabha and Lok Sabha on July 23rd, 2021. Here, the committee itself admitted that elimination of IPAB may create a void in the \u201cappellate resolution of cases,\u201d potentially necessitating the transfer of cases to \u201ccommercial or High Courts,\u201d thereby exacerbating case backlog. The Committee also noted that prolonged delays in appointing higher-level officials, coupled with the resulting suspension of IPAB operations, had hindered its optimal functioning. Consequently, the Committee recommended to the government that IPAB should be \u201creconstituted\u201d with enhanced structural autonomy and reinforced capabilities, alongside the implementation of infrastructure and administrative improvements. Additionally, the prompt \u201cappointment of officials and experienced personnel\u201d was advocated to address these issues effectively.[8]<\/a><\/p>\n Specialized IP courts hold the promise of enhancing the caliber of justice, as their specialized competence empowers them to adjudicate disputes drawing from their extensive experience in resolving previous intellectual property conflicts. This specialized expertise assumes heightened significance in intellectual property disputes, where courts frequently face requests for expedited interim relief decisions.<\/p>\n Another benefit of specialized IP courts lies in their ability to stay current with and promptly adapt to evolving intellectual property legislation. Additionally, the court\u2019s specialized proficiency is regarded favorably, given the potential risk in non-specialized courts, where, due to the \u201ctechnical complexity of disputes,\u201d decision-making responsibilities might be delegated to specialized professionals (appointed by the court or even by the parties), who ultimately assume the role of decision-makers instead of the judges.[9]<\/a> This factor merits consideration as it appears to be crucial in maintaining the proficiency of a specialized IP court, potentially offering an advantage over non-specialized courts. It plays a pivotal role in preserving the specialized court\u2019s expertise, ensuring that the presiding judges stay well-informed about the latest developments in the legal domain.<\/p>\n Several drawbacks to creating dedicated IP courts have been noted. For starters, the expenses of establishing and maintaining dedicated IP courts are seen as a disadvantage, particularly in nations with a \u201cgeneral lack of resources, a low IP case load, and little IP expertise.\u201dThe validity and appropriateness of such expenditures are determined primarily by the caseload and the extent to which these costs may be met by existing resources. The prospective expenses of establishing a dedicated IP court should also include an assessment of the costs of selecting, recruiting, and retaining judges.[10]<\/a><\/p>\n Another issue of concern is the susceptibility of a specialized court to potential political or economic influences. This vulnerability arises from the perception that generalist courts often maintain greater independence compared to specialized courts. This risk could materialize even before a judge\u2019s appointment to the specialized court, during the selection process. From this standpoint, it is proposed that generalist courts can serve as a potential safeguard or \u201cantidote\u201d against this risk.[11]<\/a><\/p>\n For instance, the IPAB\u00a0powers grew to be concentrated primarily in the hands of one person, the Chairperson of the IPAB, who was normally a retired judge of a High Court. With the ability to form benches to hear cases and assign cases to benches, the Chairpersons wielded enormous authority over the results of all IPAB litigation. The apparent concern with such concentration of power is that the ideological bent of the IPAB\u2019s Chairperson might determine all IP law flowing from the IPAB for a three-year period (i.e. their statutory tenure). During the IPAB\u2019s existence, there were relatively few situations in which any member of the IPAB disagreed or dissented from the Chairperson\u2019s judgement. Due to administrative issues, the IPAB was unable to carry out its adjudicatory powers. [12]<\/a><\/p>\n It is also argued that \u201cjudicial specialization diminishes the cross-fertilization of legal concepts.\u201d This aspect of specialized courts has garnered significant attention and has been extensively examined by scholars, who have debated whether and in what circumstances such specialization can be justified. In this context, some argue that the absence of centralization could foster a more vibrant \u201cmarketplace of ideas,\u201d while decentralization and diversity might offer more effective conflict resolution mechanisms. [13]<\/a><\/p>\n There is also an argument suggesting that if non-specialized judges struggle to grasp the intricacies of IP law, the response should not necessarily be the creation of specialized IP courts but rather reforms to the substantive IP law itself. Furthermore, specialized IP courts have the potential to promote consistency and uniformity in legal interpretations, ultimately benefiting future litigants and society by offering more predictable court decisions and enhancing overall efficiency. However, it\u2019s important to note that uniformity alone should not be the ultimate objective, as \u201cuniformity says nothing about quality or accuracy.\u201d[14]<\/a><\/p>\n Promoting IP expertise within non-specialized IP courts has been proposed as a constructive approach, especially in developing nations. This approach might eventually lead to the creation of specialized IP divisions within conventional courts. An example of this approach is the US Patent Pilot Programme (PPP), which directed patent cases in 14 pilot districts to judges who volunteered to handle them, thus enhancing these judges\u2019 specialization in patent-related matters. This case illustrates that the process of familiarizing and specializing judges in IP matters does not always necessitate the establishment of dedicated IP trial courts. Therefore, training judges in intellectual property issues can be achieved without the need for the formation of dedicated IP courts. The pivotal focus in IP disputes should be on cultivating judicial expertise, with this endeavor being the primary objective.[15]<\/a><\/p>\n In this regard, the Delhi High Court is regarded as a major forum in India for resolving IP rights issues. As after the elimination of the Intellectual Property Appellate Board (IPAB) in April 2021, the IP Division was announced in July 2021 and commenced operational on February 28, 2022.In its first year, the division resolved approximately 600 of the 2,000 cases received by the IPAB. There were 200 original trademark application cases decided, and about 40% of all transferred trademark appeals were resolved. In its first year, the division received 628 new commercial IP claims, while over 500 IP rights issues covering other categories (e.g., cancellations or appeals) were initiated. More than 700 cases were resolved in total, with just 60 appeals filed against these rulings, which might be read as litigants\u2019 acceptance of the quality of decisions delivered. However, as of March 31, 2023, there were over 4,000 IP rights complaints pending, indicating that the first year was both inspirational and problematic. [16]<\/a><\/p>\n One characteristic of the IPD Rules is that if the same \u201ctrademark or patent\u201d is involved in several lawsuits, the court can combine the procedures into a single trial. In Octave Apparels v. Nirmal Kumar trading as Apricot Fashion Alloy & Anr. [C.O. (Comm.IPD-TM) 352\/2022], the IPD bench directed that \u201ca lawsuit filed before the district court pertaining to an identical trademark between the same parties be transferred to the High Court of Delhi to be tried alongside the cancellation action filed before it\u201d. Consolidation minimises court time and expenses for litigants while without jeopardising either party\u2019s rights. A recent case involving copyright (Phonographic Performance v. Lookpart Exhibitions and Events; CS(COMM) 188\/2022<\/em>) highlighted \u201canother unique feature under the IPD Rules through which the court can seek the assistance of an independent expert(s) relating to the subject matter of a dispute.\u201d[17]<\/a><\/p>\n The establishment of such a court serves a dual purpose beyond just enhancing intellectual property protection. It also aims to guarantee an efficient and equitable dispute resolution process, overseen by seasoned judges, to the advantage of all involved parties, including \u201cintellectual property proprietors,\u201d \u201cconsumers of products and services,\u201d and \u201csociety at large.\u201d With governments and businesses forging international connections and collaborations, stakeholders are increasingly becoming both holders of intellectual property rights and consumers of \u201cthird-party intellectual property rights,\u201d underscoring the necessity for a \u201cwell-balanced system.\u201d<\/p>\n The government\u2019s commitment to specialized intellectual property tribunals conveys a clear message to the public: intellectual property rights will be upheld and enforced. The establishment of such specialized courts raises the prominence of intellectual property rights within a nation, signifying that the government recognizes it as a vital area deserving protection. This heightened awareness of intellectual property rights can lead to the stigmatization of individuals who intentionally infringe upon them, creating social pressure that discourages infringing behaviors. Rights holders can have greater confidence that their intellectual property rights will be safeguarded, thereby fostering artistic creation and innovation. Investments in the arts and innovation benefit society as a whole by instilling confidence in the business and corporate sectors, enhancing the prospects for foreign investment, and ultimately contributing to economic growth.[18]<\/a><\/p>\n In conclusion, there is no convincing evidence that specialist IP courts foster innovation more effectively than non-specialized courts in all circumstances. However, it is obvious that adequate knowledge and expertise among courts and judges may considerably improve the quality of justice in intellectual property conflicts.[19]<\/a> India currently lacks a unified intellectual property court system. With the demise of a tribunal that has rendered important judgements on several occasions, a consistent Intellectual Property redressal system is urgently required. In more recent developments, the High Court of Madras has announced the establishment of an intellectual property division in April 2023. Furthermore, the High Courts of Gujarat and Calcutta have issued particular nomenclature for intellectual property issues. All of these instances point to a shift in the country\u2019s IP jurisprudence. It is genuinely desired that other high courts in the nation would adopt the Delhi IPD approach to guarantee consistency in the adjudication of intellectual property disputes throughout India.<\/p>\n [1]<\/a> Zimmer, Markus. Overview of Specialized Courts. International Journal for Court Administration. (2009https:\/\/www.researchgate.net\/publication\/285741895_Overview of Specialized Courts\/citation\/download<\/p>\n [2]<\/a> Roy, M., & Manchikanti, P. (2017). Analysis of the disposition of IP cases by the Intellectual Property Appellate Board of India.<\/p>\n [3]<\/a> Khushbu & Akshit Narula, Need for Specialised IPR Courts in India, 5 INDIAN J.L. & LEGAL Rsch. 1 (2023).<\/p>\n [4]<\/a> Eashan Ghosh, A Case for Tethering Intellectual Property Appellate Board Cases to a Designs Act-Style Framework, 3 NAT\u2019l L.U. DELHI Stud. L.J. 43 (2021).<\/p>\n [5]<\/a> Id.<\/em><\/p>\n [6]<\/a> Mylan laboratories limited v. Union of India<\/em>, W.P. (C) 5571\/2019 & C.M. Application 24540\/2019 26833\/2019.<\/p>\n [7]<\/a> supra <\/em>note 3<\/p>\n [8]<\/a> Lamba, H. (2022). Parliamentary Standing Committee Report On India\u2019s Intellectual Property Rights Regime. Mondaq Parliamentary Standing Committee Report On India\u2019s Intellectual Property Rights Regime \u2013 Patent \u2013 India (mondaq.com)<\/a><\/p>\n [9]<\/a> de Werra, Jacques, Specialised Intellectual Property Courts \u2013 Issues and Challenges (March 23, 2016). published in: Specialised Intellectual Property Courts \u2013 Issues and Challenges, Global Perspectives for the Intellectual Property System, Issue Number 2: CEIPI-ICTSD. 2016, p. 15-41 , Available at SSRN:\u00a0https:\/\/ssrn.com\/abstract=2761209<\/a><\/p>\n [10]<\/a> IBA Survey, p, 37; IIPI Study, p. 7; see also Zimmer, \u2018Overview of Specialized Courts\u2019, p. 4; this difficulty may potentially be managed by making it possible for the court to sit and hold hearings in other places so that the court and the judges can move to the place where the litigants are located.<\/p>\n [11]<\/a>\u00a0 Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 839 (2002) (Stevens, J., concurring) (\u2018occasional decisions [on issues of patent law] by courts with broader jurisdiction will provide an antidote to the risk that the specialized court may develop an institutional bias\u2019).<\/p>\n [12]<\/a> Reddy, P. (2021). The End of the IPAB and Lessons on Concentration of Judicial Powers. SpicyIP. URL The End of the IPAB and Lessons on Concentration of Judicial Powers \u2013 Spicyip<\/a><\/p>\n [13]<\/a> supra <\/em>note 8<\/p>\n [14]<\/a> Diane P. Wood, \u2018Keynote Address: Is It Time to Abolish the Federal Circuit\u2019s Exclusive Jurisdiction in Patent Cases?\u2019, Chicago-Kent Journal of Intellectual Property 13.1 (2013): 1\u201310, at 3 (http:\/\/scholarship.kentlaw.iit.edu\/ckjip\/vol13\/iss1\/1<\/a>); see also Craig Allen Nard and John F. Duffy, \u2018Rethinking Patent Law\u2019s Uniformity Principle\u2019, Northwestern University Law Review 101 (2007): 1619\u201375 (http:\/\/scholarlycommons.law.case.edu\/cgi\/viewcontent.cgi?article=1590&context=facul<\/a> ty_publications), at 1620: \u2018Yet uniformity is not a proxy for quality. That a policy is uniformly applied says very little about its soundness or desirability.\u2019<\/p>\n [15]<\/a> supra <\/em>note 8<\/p>\n [16]<\/a> Kaur, B. (2023). The Delhi High Court IP Division\u2019s First Year Has Transformed Indian IP Jurisprudence. Remfry and Sagar https:\/\/www.remfry.com\/publications\/the-delhi-high-court-ip-divisions-first-year-has-transformed-indian-ip-jurisprudence\/<\/a><\/p>\n [17]<\/a> Id.<\/em><\/p>\n\n
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