An obituary for the IP Appellate Board

Context:

• The government has issued an ordinance which does away with certain appellate tribunals and transfers their functions to other existing judicial bodies.
• The Intellectual Property Appellate Board (IPAB), India’s specialist tribunal for determining disputes relating to intellectual property (IP) rights, is one of the tribunals abolished by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.
• Recently, the government also introduced a bill in the Lok Sabha to abolish some tribunals where the public at large is not litigant. However, since the bill could not get parliamentary nod, an ordinance was issued.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Quasi-Judicial Bodies, Government Policies and Interventions)

Mains Questions:

Where does India stand on protection of Intellectual Property? The abolition of Intellectual Property Appellate Board (IPAB) signals a missed opportunity to develop the home-grown jurisprudence on patent laws. Discuss. (15 Marks)

Dimensions of the Article:

1. What are Intellectual property rights (IPR)?
2. India and IPR
3. National IPR Policy
4. About the IPAB
5. Troubled life of the IPAB
6. Trade-Related Aspects of the Intellectual Property Rights (TRIPS)
7. Conclusion: Missed opportunity

What are Intellectual property rights (IPR)?

• Intellectual property rights (IPR) are the rights given to persons over the creations of their minds: inventions, literary and artistic works, and symbols, names and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
• These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
• The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).

Intellectual property rights are customarily divided into two main areas:

1. Copyright and rights related to copyright:
   • The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.
2. Industrial property:
   • Industrial property can be divided into two main areas:
     1. Protection of distinctive signs: In particular trademarks and geographical indications.
        • Trademarks distinguish the goods or services of one undertaking from those of other undertakings.
        • Geographical Indications (GIs) identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.
        • The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services.
        • The protection may last indefinitely, provided the sign in question continues to be distinctive.
     2. Industrial designs and trade secrets: Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.

India and IPR

• India is a member of the World Trade Organisation and committed to the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement).
• India is also a member of World Intellectual Property Organization, a body responsible for the promotion of the protection of intellectual property rights throughout the world.
• India is also a member of the following important WIPO-administered International Treaties and Conventions relating to IPRs.

National IPR Policy

• The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country.
• Its clarion call is “Creative India; Innovative India”.
• It encompasses and brings to a single platform all IPRs, taking into account all inter-linkages and thus aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.
• It sets in place an institutional mechanism for implementation, monitoring and review. It aims to incorporate and adapt global best practices to the Indian scenario.
• Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed as the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.

About the IPAB

• The Trade Marks Act, 1999(Act), provides for the establishment of an Appellate Board to be known as the Intellectual Property Appellate Board (IPAB).
• IPAB was constituted by a Gazette notification of the Ministry of Commerce and Industry to hear appeals against the decisions of the Registrar under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. (Its jurisdiction was later extended to hear patent cases after the Patents (Amendment) Act of 2002.)

Significance of the IPAB

• The functioning of the IPAB is critical for the innovation ecosystem.
• Every patent granted by the Patent Office is a potential subject matter in appeal before the IPAB.
• An unjustified patent grant at the Patent Office, by error or oversight, can only be corrected in appeal.
• While we know the number of cases filed and disposed, we will never know the number of unjustified patents that went unquestioned for lack of an effective appellate mechanism.

Troubled life of the IPAB

• Ever since the Intellectual Property Appellate Board (IPAB) was established under the Trade Marks Act of 1999, it looked like an incomplete quick-fix for the problems in the innovation system.
• Historically, appeals from the Intellectual Property Office (IPO), rectification and revocation applications were heard by the various High Courts. However, the Patents (Amendment) Act of 2002 divested these powers from the High Courts and extended it to the IPAB.
• Since its inception, the IPAB has been involved in controversies and has been the subject matter of judicial review before the various High Courts.
• After remaining headless for almost two years, in 2018, the IPAB was given a chairperson and yet, there was a substantial delay in the start of hearing of patent cases due to a technical reason.
• One of the former chairpersons had publicly raised concerns regarding the judicial and institutional independence of the IPAB, and called for closing it.
• Not only was the IPAB understaffed, with its administrative staff often being on deputation, it was also underpowered, at times quite literally.
• The IPAB’s jurisdiction of cases was split between trademarks, patents, copyright, and geographical indication, where the predominant business pertained to trademarks. Thus, the workload of the IPAB was typically split between trademarks and patents with the former consuming much of the time.
• Not only did the IPAB juggle its time with the different forms of IP, but it also had sittings in five different cities, with just one chairperson who had to fly between them at times.

Trade-Related Aspects of the Intellectual Property Rights (TRIPS)

• The Trade-Related Aspects of the Intellectual Property Rights (TRIPS) is an international agreement on intellectual property rights.
• It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade.
• The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.

The Agreement covers most forms of intellectual property including

1. patents,
2. copyright,
3. trademarks,
4. geographical indications,
5. industrial designs,
6. trade secrets, &
7. exclusionary rights over new plant varieties.

It came into force in 1995 & is binding on all members of the World Trade Organization (WTO).

The basic obligation in the area of patents is that, the invention in all branches of technology whether products or processes shall be patentable if they meet the three tests of being new involving an inventive step and being capable of industrial application.

Conclusion: Missed opportunity

The tenure of the IPAB will be remembered as a missed opportunity to develop the home-grown jurisprudence on patent law that is much lacking in India.

India stands as a shining example for what it has done legislatively in patent law offering the world a host of ‘TRIPS-compliant’ flexibilities in its statute- Example:

1. the retraction of product patents for pharmaceuticals and chemicals between 1970 and 2005, the anti-evergreening provisions; or
2. the robust compulsory licensing regime.

However, when it comes to developing a jurisprudence around these provisions it has failed. – Barring a few bright spots, there has been a reluctance to extend the flexibilities in the Patents Act through judicial interpretation that expands the law.

-Source: The Hindu