Set up with the objective of hiving off intellectual property law cases to an expert forum and diffusing docket pressure on High Courts, India’s Intellectual Property Appellate Board (IPAB) has been the source of some extremely progressive decisions in Indian intellectual property law over the last decade. (Some of my previous work analyzing some statistical trends from over 1,200 orders passed by the IPAB between 2010 and 2014 is here.)
After Justice Sridevan retired from her position as its Chairperson, Justice KN Basha, formerly of the Madras High Court, was appointed her successor at the IPAB in September 2013. His tenure, which ran out over two and a half years later in May 2016, saw a staggering fall in qualitative productivity.
Sifting through the 487 publicly available orders passed by the IPAB while Chairperson Basha held office (tabulated and summarised here), I found that only 76 (15.6%) were orders on merits i.e. final adjudications disposing of cases on substantive legal grounds. Of these 76 orders, 45 out of a total of 102 orders (44.1%) were issued by benches comprising various combinations of the three Technical Members (V Ravi, SK Chaswal, DPS Parmar) and Vice-Chairperson (and later Acting Chairperson) S Usha. The majority of these orders, in turn, were issued in cases reserved by or pending with by these preceding judges in the ten month interregnum between Chairman Basha’s appointment in September 2013 and the disposal of the last of these cases in June 2014.
Thus, remarkably, in the two and a half years between September 2013 and March 2016, of the 385 publicly available orders passed by benches helmed by Chairperson Basha, a mere 33 (8.5%) were orders on merits.
Even a generous definition of “final adjudication” to include decisions on preliminary applications only adds 75 cases to this total. Of these, 38 orders were in cases where the Indian trademark or patent offices were found to have violated the principles of fair procedure and were ordered to rehear or reconsider whole or part of these cases. The remainder decided distinctly soft issues such as procedural maintainability of appeals, impleadment of fresh parties, accepting additional documents, permitting relief against non-contesting parties, and consolidation of cases involving common questions of law.
The remaining orders — an astonishing 72% of the total passed by Chairperson Basha’s bench — were dedicated to recording withdrawals of cases (28%), settlements (14%), condoning delay in filings (9%), cases dismissed for non-prosecution (6%), and there were no fewer than 43 instances (or roughly 11%) of cases frustrated by the expiry or abandonment of the trademark or patent in question.
In contrast, the 12-month period preceding Chairperson Basha’s term i.e.September 2012 to September 2013 saw 117 orders passed by the IPAB that would fit comfortably within this understanding of “final adjudication”. This meant that approximately 57% of IPAB orders in this period were substantive orders.
There were, however, a couple of mitigating factors at work here. First, the ten month interregnum between Chairperson Basha’s appointment and the disposal of the last of the cases pending with the outgoing roster of judges meant that the majority of the first year under his aegis was very much a transitional phase. Second, the IPAB was operating without a Vice-Chairperson for almost his entire tenure. This presumably complicated the convening of simultaneously functioning benches — a bizarre state of affairs which meant that Justice Basha, by default, was an everpresent in every case decided by the IPAB since June 2014.
These factors supply at least part of the explanation for the 41% drop in the IPAB’s overall output between 2013 and 2014. (These numbers recovered by about 20% in 2015, though the first three months of 2016 yielded only 31 orders, most of which are presently inaccessible on the IPAB website.)
However, the decline in qualitative output is stark and the skewing of disposal numbers in favour of relatively less technical issues and subject matter under Chairperson Basha is unmistakable.
In the ten months since his departure, though, something extraordinary has been happening at the IPAB — nothing has been happening. As a result, following Technical Member Parmar’s retirement in May 2016, there is presently no full-time Chairperson, Vice Chairperson, or Technical Member for Patents. It was widely rumoured that Justice Manmohan Singh would take over as Chairperson after retiring at the Delhi High Court last September but that came to naught. Without a Chairperson or Vice Chairperson in place, quorum is rendered impossible, though that is a story within a story. [The short version is that to function at minimum quorum for a hearing, the IPAB, under Section 84 of the Trade Marks Act, must consist of either a (judicial) Chairperson or Vice-Chairperson plus a Technical Member of the field the case relates to or a Chair plus Vice Chair or a Chair, Vice Chair and relevant Technical Member. A March 2015 decision of the Madras High Court held unconstitutional key provisions regarding the qualifications and method of appointment of IPAB judges.]
The IPAB has since been issuing a series of periodic notifications under the hand of the Deputy Registrar In-Charge, an administrative appointee, scheduling hearings for purely administrative purposes such as service of papers and removal of filing objections. Where these cases have involved the exercise of judicial discretion of any description, they have simply been posted for hearing before the (as-yet unconstituted) IPAB bench. Meanwhile, the IPAB Registry continues to receive and process filings for original and appellate side actions for invalidating trademarks and patents.
Not only do there appear to be no answers but no one appears to be asking the question either: what’s happened to the IPAB?
Comments