CLOSURE OF IPAB WAS DONE IN HASTE BY THE GOVERNMENT - THE WAY FORWARD TO STRENGTHEN IP REGIME IN THE COUNTRY.
Government of India on 4 April 2021 through The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 has abolished various tribunals including the Intellectual Property Appellate Board (IPAB) that was established on 15th September 2003 in haste and without any preparedness. An institution that was in existence for 18 years was closed on a single day. It was true that IPAB was not functional for most time during its existence due to non-appointments of chairman, Vice-chairman, technical members. For long time it was neglected by the Government in providing proper infrastructure and human resource to run the institution. It is the inaction of the Government in appointments and providing resources that lead the non-functionality and thereby leading to public distrust on the institution. Advocates had chosen to file writ petitions on the orders of the Trademark Registrar and Controller of Patents citing non-functionality of IPAB.
The objectives narrated in The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 that was placed before Parliament on 11th February 2021 were not correct and cannot be applied to the IPAB. The Government of India instead scrapping IPAB, if the objectives of Government are genuine they should have strengthened IPAB by providing proper infrastructure and human resources to handle matters before IPAB and thereby building credibility to the institution.
IPR’s in India are not been fully exploited due to poor or no awareness on the subject in the country though IP legislations were existing for longer time in the country. It was only after signing the TRIPs in 1995 and after the completion of transition period of 10 years granted by WTO to implement TRIPs agreement in India i.e., on 1-1-2005 the greater awareness is created and Indian industry started filing applications for IP Rights in India. The Objectives of the Government of India in promotion of IP Awareness is to create huge IP Assets for the country that can be traded and thereby huge foreign exchange can be created for the country. To achieve this noble objective the government has come up with National IPR Policy in the year 2016 and established CIPAM and other institutions for creating awareness on IPR and provided incentives to the industry to be creative and innovative for filing large number of IP Applications which lead to creating IP Assets for the country. Even start-ups, MSME, Academic Institutions and women are encouraged to file more number of IP Application by providing incentives like funding, training and concessional charges in Application fee etc.,. All this will be derailed with abolishment of IPAB and India will go back to the year 1995 in terms of IP Application filing and creation of IP Assets for the country.
There were reports which stated that the present move to abolish IPAB of the Government is towards establishment of IP Courts. This policy decision of Government to scrap IPAB and establishing IP Courts in the Country is a welcoming move. However, it should have been gradually done and not in this hastein that closing the institution in a single day. Particularly when the High Courts are already over burden and similar to the delays in IPAB Appointments, the Appointment of Judges in High Court too are very slow and large numbers of vacancies are still in existence as on today i.e., 01-04-2021 about 411 Judges posts are Vacant in all 25 High Courts of the Country. The High Court with the current strength cannot take up these additional matters flowing from IPAB and thereby leading to longer durations to decide these matters impacting the new application filings and trade in the Country.
Further the functioning of Commercial Courts or commercial division of High Courts is also not in consonance with the objectives of Commercial Courts Act, 2015. Based on a study results, overall the Act’s well-intentioned measures have been poorly implemented by state governments and the judiciary. The study report further states that there is either a shortage of judges or that judicial performance is below par in implementation of Commercial Courts Act, 2015 in the country. One of the factors that contribute to poor implementation is the lack of capacity of these courts; in that the additional workload were assigned to the Commercial Court judges, designated under the Act losing focus for them to the objectives of the Act.
The government should have increased the requisite infrastructural and human resources for commercial Courts and Commercial Division of High Courts before scrapping the long running Tribunal IPAB. The decision to abolish IPAB without the requisite infrastructural and human resources to Commercial Courts and High Courts would inherently make the objectives of the Government and its implementation unsustainable.
Owing to the prolonged litigations in India, Indian Market has been ignored by most Multinational Companies for protection of IPR and consequent Foreign Direct Investments in INDIA. The Government tried to address this issue by implementation of commercial Courts Act, 2015 and by a strong IPR regime that could influence the inflows of FDI, technology transfers and trade that may have a bearing on the growth of country.
The Government of India has made a scheme to Strengthen IPAB which will certainly directly contribute to the growth of a stronger IPR regime and indirectly in the growth of economic development of the country as is narrated at Government’s Ministry of Commerce and Industry DPIIT portal https://dipp.gov.in/programmes-and-schemes/intellectual-property-rights/scheme-strengthening-intellectual-propertyappellate-board-ipab on such a scheme of the government.
However the present decision will be hard hitting on such an objective of the Government of India as the growing number of filing in IPR in India will gradually reduce owing to the poor enforcement mechanism. Simple administrative corrections in IP Applications that if refused by the Registrar of Trademarks, Registrar of Copyrights or Controller of Patents an appeal needs to be filed with High Courts which would take longer duration and become expensive process to the applicants and thereby time bound rights would be impacted. This will have a direct impact on the trading pattern in India and hinder the very objective with which the scheme to strengthen IPAB was introduced by Government of India.
THE WAY FORWARD:
The following are two ways before Government on going ahead:
- This decision of Government to abolish IPAB would certainly impact the economic growth of the Country gradually and thus the Government should re-analyse and withdraw the decision without any further delay and provide all necessary infrastructure and human resources to the institution to increase the credibility of the institution and thereby increased number of IP Filing in INDIA and the credible trust to invest and trade in INDIA for economic prosperity of the country.
- The Government should immediately on war footing take steps to create the so called IP Courts and ensure speedy disposal of Appeals, Rectification/Revocation Applications and other petitions to create credibility among Applicants for protection and enforcement of Intellectual Property rights. This requires huge infrastructure and human resources that will certainly take longer time given the pandemic situation.
Conclusion:
The decision of Government of India has taken in haste since Government of India till date has not even prepared the required guidelines or procedures for transfer of existing cases to High Court from IPAB nor provided any directions for framing the new rules for filing fresh cases in respective High Courts or commercial courts to take up fresh matters (Appeals, Rectification/Revocation Applications and other application that were handled by IPAB). It is chaotic situation presently with the litigants who need to file said fresh matters without such proper guidelines. The fee required to be paid, jurisdiction where the matters needs to be filed and other issues need to be addressed immediately to clear such chaotic situation. This is apart from the lack of infrastructure and human resources with High Courts and Commercial Courts in the Country.
If the intention of Government is to scrap IPAB and transfer the matters to High Court and Commercial Courts then the Government should first strengthen the High Court and Commercial Courts and prepare them to handle those matters effectively before scarping IPAB.
There was absolutely no such great urgency for Government of India to bring an ordinance to close IPAB that too without any background work such as guidelines and process for transfer and/or institution of fresh matters before High Courts and Commercial Courts. Hence the Government should withdraw the present ordinance to the extent of scrapping IPAB and reconsider its decision. If the Government still opines to scrap IPAB, they should prepare the guidelines and procedures for handling IP Matters by High Courts and Commercial Courts along with increased infrastructure and Human Resources and until then they should continue IPAB failing which India’s economic condition would gradually impacted and effects the economic progress of the Country in the long run.
The IPAB’s abolition would be perceived as a negative indication to companies having business interests in India, and may not align with the objectives of government to create IP Assets for the country and thusthe idealist way forward now before the government is to withdraw its present decision to scrap IPAB and strengthen the institution for better prospects of the economic condition of the country particularly during this pandemic situation.
Probably in the long run when government is prepared it can scarp IPAB and transfer the matters to the specialized IP Courts that are created in future.