Recalibrating Intellectual Property Litigation in India after the Abolition of the Intellectual Property Appellate Board (IPAB)

Abstract

Intellectual Property litigation landscape in India has witnessed a significant paradigm shift after the promulgation of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, on 4th April, 2021. By the operation of this Ordinance, the Intellectual Property Appellate Board (IPAB) was abolished. The main reasons behind the abolition of IPAB were unnecessary administrative issues and vexatious procedures at appeal stage. After IPAB was abolished, appeals were to be heard directly by the High Courts. To ensure efficiency, Delhi High Court (“DHC”) established dedicated IP division to hear appeals, and Madras High Court followed suit. However, initially, the stakeholders were quite sceptical about this move contending that High Courts were already overburdened with pending matters, and were also understaffed.
DHC has been extremely proactive in the domain of IP disputes resolution. On 24 February, 2022, DHC notified the Intellectual Property Division Rules, 2022 (DHC-IPD Rules, 2022) and the Rules Governing Patent Suits, 2022 (Patent Rules) with the aim of streamlining the dispute resolution process. Whereas the IPD Rules establish a uniform procedure relating to IP disputes, the Patent Rules simplify and embolden the adjudication process in patent infringement cases. In addition to the IPD and Patent Rules, DHC has played a vital role in making IP litigation swift and effective by taking some impressive steps like appointing independent experts, encouraging mediation proceedings for resolution of disputes, recording evidence through video conferencing, cataloguing and categorisation of cases relating to IT Act, IPR, and others.
Viewing the matter statistically, over 2000 IP-related matters were transferred from IPAB to DHC after the former’s abolition. Owing to the presence of a separate IP Division, more than 600 cases were disposed of, which is a remarkable feat. More than 1,000 cases were instituted within the first year of its inception, about fifty percent of patent appeals received from IPAB were disposed of, over 600 commercial suits within a year were adjudicated, and around fifty percent of trademark appeals were heard and disposed of. Certainly, the establishment of IP Division at DHC has ushered a new era of IP litigation process, and the numbers strongly steer us in the direction of establishing more IP Divisions in various High Courts of India.
Pertinently, in the 161st Report of the Review of IPR Regime in India, which was presented before the Parliament on 23 July 2021, the Department Related Parliamentary Standing Committee on Commerce recommended the re-establishment of the IPAB. However, the 169th Report recommended the creation of IP Divisions in all twenty-five High Courts of India. In this paper, in addition to making a comparative analysis of pre- and post-IPAB scenarios, the authors will be conducting a critical analysis of the current paradigm of IP litigation in the reign of IP Divisions. The authors will also attempt to make a solid case for robust IP Divisions to ensure effective and efficient resolution of IP disputes in India.