This article is written by Anshuman Dash, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

 Introduction

Due to the growing research and developments in India, several intellectual properties came up in the 21^st century, and with the boost in innovation, came disputes regarding intellectual properties. Now, it was amazing for a developing economy to have a more intangible property to be exploited to generate revenue but the increase in disputes heavily burdened the courts which were already overburdened. There arose a need for a special appellate board only to deal with issues related to intellectual properties which gave rise to IPAB (Intellectual Property Appellate Board) which was set up in September 2003. The aim of this appellate board was to establish a smooth venue for disposing of intellectual property cases on a rapid basis as compared to the high court’s as the issue mostly were the appeals against the Registrar. In this article, we shall focus on the order of the Delhi High Court  and the application of the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021

Why was the IP division created?.

On 4th April the Government of India by using Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021 scrapped the appellate board citing inefficiency. The main reason for the creation of this appellate board was faster delivery of justice and reduction of dependence on High Courts but the board failed as there were several cases pending in the Appellate Board and it was facing issues regarding shortage of staff. Following this ordinance, all the pending cases of the IPAB were subsequently transferred to the high courts. Due to this, the Delhi High Court recommended the creation of a new intellectual property division.

Objectives and aim of the recent IP division in Delhi High Court 

• Adjudicating all the matters related to Intellectual Property Rights would be under The Intellectual Property Division of the Hon’ble Delhi High Court. This will include the following:

1. Intellectual property disputes
2. Appeals from the registrar of Trademarks, Controller of Patents, Copyright Registrar;
3. Revocation and cancellation of applications
4. Writ petitions
5. Original  proceedings and Appellate proceedings;
6. Fresh  intellectual property rights filing 
7. Regular First Appeals (RFA);
8. First Appeal from Order (FAO);
9. All other proceedings that were maintainable before the erstwhile IPAB under the trademarks, copyrights, patents and Designs Act.

• The main aim is to create a division within the high court of Delhi for expedite  clearance of disputes relating to intellectual property rights.
• The Delhi High Court has been formulating rules and regulations for the newly created body intellectual property appellate board.

Tribunal reforms (Amendment act of 2021) that lead to the scrapping of IPAB 

A tribunal is a quasi-judicial body with the presence of the executive wing of the government vested with certain specific judicial rights which are formed as per Articles 136 and 227 of the Indian Constitution. The original idea of the tribunal system was to free certain specific issues out of the clutches of the judiciary so that it could reduce its burden and could provide specific experts to deal with specific disputes with the tribunal having the final call on the fate of the cases. Which meant that those tribunals would be the first and last courts for any appeal but experienced litigators denied this idea and this merely remained on paper.

Litigators preferred courts more than these quasi-judicial bodies as even with scarcity of judges, courts never stop to function unlike in the case of tribunals. So the Tribunal Reforms Act, 2021 takes the litigation back to the courts and finishes off this extra layer of litigation. The case of IPAB (Intellectual Property Appellate Board) mostly remained non-functional in most of its lifetime. This decision was made by the government to end tribunals and start independent bodies under the courts for rapid delivery of justice.

The order of the High Court which established the said division

Serial number	Section under which it is filed	Respective Acts	Nature of proceedings	High court nomenclature	Jurisdiction as per the ordinance	Jurisdiction (under high court)	Court fees
1	Section 47	Trade Marks Act	Original (As per Sec. 47(i) can be filed before Registrar of Trademarks as well as High Court having concurrent jurisdiction)	C.O. (Comm. IPD-TM)	Registrar of TradeMarks” or the “High Court”	IP Division (Original Side)	Five hundred twenty-five rupees(525 rupees )
2	Section 57	trademark	Original (As per Sec. 57(2) can be filed before Registrar as well as High Court having concurrent jurisdiction)	C.O. (Comm. IPD-TM)	Registrar of TradeMarks” or the “High Court”	IP Division	Five hundred twenty-five rupees(525 rupees
3	Section 91: An appeal was made to the Appellate Board which is now the High Court.	trademark	Appellate (against the order passed by the Registrar and since u/s 47 & 57 Registrar and HC have concurrent jurisdiction	C.A. (Comm. IPD-TM)	High court	IP Division	Five hundred twenty-five rupees(525 rupees
4	Section 125 Application to the Appellate Board for questioning the validity of the registration was with IPAB but now under High Court)	trademark	Original (Sec. 125 specifically provides for presentation before the IPAB (now HC) and bars it before the Registrar and since u/s 47 & 57 Registrar and HC have concurrent jurisdiction)	C.O. (Comm. IPD-TM)	High court	IP Division	Five hundred twenty-five rupees(525 rupees
5	Ss19A, 23,31,31A,31B, 31C,31D, 32 and 33 .	copyright	Original (proceedings are originally filed before the IPAB (Now HQ and not before the Registrar as per Section 31-D(3)	C.O. (Comm. IPD-CR)	Commercial Court” (As per Sec. 2(fa) Commercial Court means a Commercial Court or the Commercial Division of a High Court.	IP Division for time being till further orders	Five hundred twenty-five rupees(525 rupees
6	Section 50 Rectification of Register by IPAB which is now under the high court)	copyright	Original (The application as originally filed by the Registrar or any aggrieved person before the IPAB (Now HQ and not before the Registrar as per Section 31- D(3)	C.O. (Comm. IPD-CR)	High Court	IP Division	Five hundred twenty-five rupees(525 rupees
7	Section 72.	copyrights	Appellate	CA (Comm. IPD-CR)	High court	IP Division	Five hundred twenty-five rupees(525 rupees
8	64. Revocation of Patents by the Appellate board which is now under the high court	patents	Original (The application is originally filed before the IPAB (Now HQ and not before the Controller)	C.O.(Comm. IPD-PAT)	High Court	IP Division	Five hundred twenty-five rupees(525 rupees
9	Section 71.	patents	Original	C.O.(Comm. IPD-PAT)	High Court	IP Division	Five hundred twenty-five rupees(525 rupees
10	Section 117-A.	patents	Appellate	C.A.(Comm. IPD-PAT)	High Court	IP Division	Five hundred twenty-five rupees (525 rupees

How would this impact the IP cases in India?

• This new intellectual property dispute settlement would result in a more efficient and consistent  IP redressal and other high courts would eventually follow the same mechanism. This is because maximum cases of the IPAB were appealed to the Delhi high court so they carry the necessary experience to deal with intellectual property disputes and with the adoption of similar mechanisms by other high courts specialized bodies will sprout within the courts that will have expertise in intellectual properties issues as they would even make something similar to “High Court of Delhi rules governing patent suits, 2020” which would advise them as it would do in the case of Delhi High Court.
• There will be a focused approach made by the judges who have technical expertise (as it is required in case of dealing patent cases e. g. the PHOSITA) and have faced intellectual property issues in the past. This shall result in streamlined, consistent and predictable decisions. For e. g. in the past, there were certain cases in which two judges discussing the same facts and laws applied different thought processes or reasoning and reached different conclusions on the same case which has caused high levels of unpredictability. This new system would eliminate these confusions and would provide several exposures to intellectual property disputes.
• High courts inherently carry higher worth than any other tribunal, so converting  the intellectual property  appellate board  to an extension inside the Delhi High Court would significantly increase the importance of intellectual properties in India. The decisions provided by the extension wing of a high court shall definitely have an upper hand  and higher importance as precedents in future and due to the technical  expertise of judges  reliability on those decisions would increase exponentially   
• The problems of the  IPAB was the shortage of staff  and non appointment of the chairperson which would hardly be an issue in any high court
• This would make an upsurge in patent agents who are qualified under the high court.
• There might be applicants or patent holders who would have to wait more or in other words, waste their right of exploitation (in case of patents on a majority basis a term- period is as less as 20 years with two or three years wasted already on achieving registration) being reduced as they have to wait and lose more years for the intellectual property division to function on its fullest extent.
• Since the intellectual property division is an extension of the High court there would be higher litigation expenditure by the applicants.

Measures to be taken by the Intellectual Property Board

• Due to the huge pendency of cases, there are chances that applicants might have totally lost interest in their matters. So fixed timelines should be made for completing the pleadings made before the court. This has to be done specially for cases that were pending in the IPAB for more than one year or twelve months. There should be a discouragement for any adjournments in the IP division and only on some exceptional conditions, adjournments should be considered.
• The tenure of judges must be extended and kept for longer periods so that they could build up the required technical expertise in any intellectual property subject matter.
• Increase the number of judges in the intellectual property division for speedy justice.

Conclusion

There is a lot of buzz among the lawyers and IP enthusiasts about this issue but instead of totally cutting off the quasi-judicial body it would have been better to transfer those cases smoothly after making a proper mechanism and approaching all those applicants concerned. This would have led to less procedural compliances as now the applicants whose cases have been pending since 2017 or 2018 would have to wait a few more months or years for the compliances to be finished.

Constant delays were a major reason for scrapping the IPAB but now, when it is added to the High Court (which is already overburdened with cases), it may lead to further long delays which might defeat the purpose of this recent high court order. IP holders would have to bear with problems as due to this, there might be a shortage of time period of exploitation of their IP rights. There might be some additional costs for litigation in the High courts as well.

References

1. https://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_4W1UGE3WNT9.PDF
2. https://www.mondaq.com/india/trademark/1093088/intellectual-property-division-delhi-high-court-notifies-nomenclatures-and-court-fees
3. https://www.iam-media.com/copyright/creation-of-ip-division-in-delhi-superficial-now-could-pay-in-the-long-run 

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