The Intellectual Property Appellate Board (IPAB), headquartered in Chennai, has been without a regular chairman for over a year now. The proposal in the Finance Bill 2017 merging the Copyright Board with IPAB has further delayed the process, denting India’s image internationally, according to experts.
The IPAB comprises a chairman (a retired judge of high court) and vice-chairman. In addition, there are three technical members: one for patent and one for trademark; the third member hears the case based on the nature of dispute. Justice K.N. Basha retired as IPAB Chairman in May last year. Sanjeev Kumar Chaswal, who was the only technical member (trademark), is the acting chairman.
“The vacancy at the top level can add to the pending backlog of applications and appeals. Also, it is damaging to India’s reputation across the global IP landscape as US Trade Representative’s (USTR’s) special report has put India in its ‘Priority Watch List’ for poor record. Apart from red tape, introduction of the recent Finance Bill has contributed to this delay,” Rahul Dev, partner, Tech Corp Legal said.
“The introduction of the Finance Bill has questioned the judicial independence of IPAB. The government is yet to notify the corresponding rules, which implies that IPAB may continue without head in the near future as well,” he added.
“Appeals from decisions of the Controller of Patents lie to the IPAB, and such vacancies, coupled with vacancies for the post of vice-chairperson and the technical member (patents) only worsens the situation. Also, appeals from any post-grant opposition also lie to the IPAB. Thus, the delay make it difficult to enforce good patents and leads to continuation of bad patents,” S. Majumdar, founder partner, S. Majumdar and Co, said.
‘No clarity’
Some reckon that the responsibility of appointing the chairman has now been shifted to the Finance Ministry from the Commerce Ministry, according to the Finance Bill. However, there is no clarity on the issue.
“Things are still not clear. In any case, the Government of India, through a writ petition before the Delhi High Court earlier this month, informed that the appointments to the post of chairperson and technical member (patents) will take place within four weeks,” Mr. Majumdar added.
“The IPAB’s performance has been lacklustre since its inception, save for a few golden years. The government must consider scrapping the IPAB and returning its functions to the High Court. The IPAB has failed its purpose,” said Prashant Reddy, a research associate at School of Law, Singapore Management University.
P. Sanjai Gandhi, president of Intellectual Property Rights Attorneys Association, requested the Centre to take necessary steps to notify the provisions of the Finance Bill 2017 and expedite the appointments.
