Delhi High Court expresses deep distress over functioning of The Intellectual Property Appellate Board

The Intellectual Property Appellate Board (IPAB) created with much fanfare in 2003 with avowed objective of reducing the backlog has proved to be ineffective with cases languishing for years. The current chairman retired in September 2019 and no appointment of Chairman or Technical member (Patent and Copyright) has been made. This has brought functioning of IPAB to a grinding halt. A writ petition filed by Novartis recently at the Delhi High Court brought to the court’s attention that Patent granted to its drug`Ceritinib’ (meant for lung cancer) was challenged before the IPAB. The petition in this regard is not being heard as IPAB is not functional.

The court noted in its order noted “more than 16 years have passed since the IPAB has been constituted. However, the process of functioning of the IPAB has not been streamlined. Under these circumstances, some emergent steps need to be taken by the Government to ensure that the IPAB functions in an efficient and smooth manner for the purpose for which it has been constituted”. The court before issuing any specific directions in this case asked the government through Additional Solicitor General to provide following information

  1. Total number of cases pending before the IPAB;
  2. Conditions of appointment and Status of appointment of Chairperson of IPAB;
  3. Status of appointment of technical members of IPAB;
  4. Financial autonomy given to IPAB; and
  5. Recruitment of staff of IPAB and processes thereof;

In an earlier case in July, 2019, the Delhi High Court had expressed its displeasure over functioning of IPAB and issued a notice to the government demanding a status report on the appointment of Technical Members to the IPAB. The court in the said order held that the Chairman of IPAB and the current Technical Member for Plant Varieties cases are competent to form the required Coram (of one judicial and one Technical member) to hear the urgent matters pertaining to Patents, Trade Marks and Copyright till the vacancies of the required Technical Members are filled in. The details can be accessed here

Our comment

It is imperative that government takes note of the challenges being faced by IP owners in protecting and enforcing their rights through IPAB, a special Tribunal created to provide speedy resolution of matters.

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