Delhi, Madras High Court judgments pave the way for a more effective IPAB

The Madras High Court’s recent judgment deeming certain provisions of the Trademarks Act as unconstitutional has been welcomed by IP experts around the country. Just five days before, in another step in the right direction, the Delhi High Court on March 4 had urged the government to consider setting up a permanent bench of the IPAB at Delhi within three months..Upholding the Doctrine of Separation of Powers.The Madras High Court judgment, delivered by Chief Justice Sanjay Kishan Kaul and Justice MM Sundresh, highlighted the discrepancies in the selection process of the members of the Intellectual Property Appellate Board (IPAB). It was held,.“…the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India.”.The Bench also called for a revamping of the qualifications required to be a member of the Board under Section 85 of the Trademarks Act. It was recommended thus:.“A person, in the post of Joint Registrar or above with the qualification of 12 years of practice at bar or 12 years’ experience in a State Judicial Service with a Degree in Law, along with other qualifications alone is to be considered to be appointed as a Technical Member.”.It was also recommended that the Vice-Chairman and Chairman of the board have the same qualifications. The Bench also asked the IPAB to consider the inclusion of judges from the higher judiciary, rather than filling the Committee from the Executive..Prof Shamnad Basheer, who was instrumental in bringing the cause to the forefront, spoke to Bar & Bench on how the victory was achieved..“The manner in which the government continued to egregiously violate one constitutional norm after another and stack the IPAB with questionable candidates was very worrying. Fortunately for us, the Supreme Court passed a hard hitting order in NTT against this tendency of the government to usurp judicial powers through tribunals. This no doubt had a bearing on our case as well. What also helped our case significantly was the fact that the then chairman of the IPAB, Justice Prabha Sridevan issued a hard hitting report calling a spade a spade and agreeing with the contents of our writ petition that the structure of the IPAB was severely flawed.”.Senior Advocate and IP expert Pratibha Singh also expressed her approval of the judgment. She said,.“It’s a very good judgment and I welcome it. This was needed to streamline the working of the IPAB and add more competent people who have judicial experience. This in turn will lead to quicker disposal of matters. Personally, I don’t think the government should appeal the order.”.However, Prof Basheer highlighted the fact that the judgment only deals with technical members of the trademarks side and has overlooked those on the patents side..“Unfortunately, the decision is limited to correcting the constitutional infirmities on the Trademarks side, but fails to take into account the fact that even the technical members on the Patents side are bereft of adequate judicial competence to be able to legitimately sit on this important tribunal. We are therefore planning on asking the court to clarify this soon, since it is clear that this is an accidental omission. We expect the government to appeal this and perhaps this case may get clubbed with the other cases on tribunals that are now pending before the Supreme Court.”.A case for a permanent bench at Delhi.And it is not the Madras High Court’s decision alone that has evoked optimism. Earlier this month, the Delhi High Court passed an order directing the government to consider the feasibility of a permanent bench in Delhi. A bench comprising Chief Justice G Rohini and Justice Rajiv Sahai Endlaw noted thus:.“…the number of cases filed in Delhi far exceeds the number of cases filed in IPAB at any other location. It is further shown…that owing to Delhi having a Circuit Bench, the number of cases disposed of at Delhi jurisdiction is less than the number of cases disposed of at Chennai, even though the filing here is more…however the disposal at Delhi of patent cases remains below the disposal figure of Chennai in spite of the filing of the patent cases in Delhi being more than at Chennai.”.The IPAB has been plagued with issues of Executive interference, growing pendency rates and the lack of competent permanent members on board. The judiciary’s attempts at improving the working of the country’s highest authority on Intellectual Property Law can only bear fruit if the government decides that it is on the same page. It will be interesting to see the government’s response to these progressive judgments.