IPAB Chairman & Technical Member (Plant Varieties Protection) to hear IP matters till vacancies are filled up: Delhi HC

The Delhi High Court has ruled that the Chairman of the Intellectual Property Appellate Board (IPAB) and the Technical Member (Plant Varieties Protection) are competent to hear urgent matters relating to patents, trademarks and copyright till the vacancies of other Technical Members are filled up..It has further clarified that the orders passed by the Bench would not suffer from invalidity on the ground of lack of coram..While passing the direction, that Court noted that no Technical Member (Copyright) has been appointed till date to the IPAB. It further added that while the post of Technical Member (Patents) is lying vacant since May 4, 2016, the post of Technical Member (Trademarks) is lying vacant since December 5, 2018. Meanwhile, there is only one Technical Member relating to Plant Varieties Protection..Considering the grave situation which has resulted in the pendency of 3,935 cases across all the IPAB Benches, the Court observed,.“..the doctrine of necessity has to be invoked in the present case. The legislative intent is of the continuity of IPAB and not its cessation because of a vacancy in its technical membership.”.The order was passed a Single Judge Bench of Justice JR Midha in a petition by Mylan Laboratories..Mylan Laboratories (petitioner) had moved the High Court in relation to an order passed by the Deputy Controller of Patents and Designs. The order had dismissed the pre-grant opposition filed by the petitioner while granting the patent to another entity in respect of ‘Methods of Evaluating Peptide Mixtures’..The petitioner had then filed an appeal along with a stay application before the IPAB. It was, however, constrained to approach the High Court for an urgent hearing of the stay application, as the IPAB was not functioning because of lack of a Technical Member (Patents)..While the petitioner listed out the possible solutions for a situation such as allowing the Chairman to sit together with any expert from the panel of scientific advisors to complete the coram, the Amicus Curiae stressed that the Centre had miserably failed to uphold the right to access to justice of the citizens of India with respect to the adjudication of IPR disputes in the country..It was also submitted that Section 84 of the Trademarks Act, which mandates that a Bench of the IPAB shall consist of one Judicial Member and one Technical Member, had made it virtually impossible for the IPAB to dispose of cases in the absence of the required coram..The Amicus Curiae also suggested that provisions ought to be incorporated for employing experts as ad-hoc members till a Technical Member is appointed under the Act..After hearing the parties, the Court noted that cases relating to trademarks, copyrights and patents were not being taken up by the IPAB as there is no Technical Member relating to those specialities..“The term of a patent is only 20 years and in many cases, due to lack of Coram, the patents have expired and the matters have become infructuous and rights of parties have been severely prejudiced.”.The Court stated that although Section 84(2) of the Trade Marks Act provides that the IPAB Bench shall comprise of a Judicial Member and a Technical Member, no procedure with respect to a vacancy of a Technical Member or when a Technical Member cannot participate is laid down..The Court thus concluded that it was a case which warranted invoking the doctrine of necessity..It ordered,.“this Court holds that the Chairman, IPAB and the Technical Member (Plant Varieties Protection) are competent to hear the urgent matters relating to the Patents, Trade Marks and Copyright till the vacancies of other Technical Members are filled up and the orders passed would not suffer invalidity on the ground of lack of Coram..…If the Technical Member (Plant Varieties Protection) is not available for any reason or recuses, Chairman, IPAB can proceed to hear the urgent matters.”.The matter will be next heard on August 20..Senior Advocates JP Sengh and Rajiv Nayar were Amicus Curiae in the matter..The petitioner was represented by Advocate Rajeshwari H..The Centre was represented by Standing Counsel Gaurang Kanth..Read the Judgment: