IPAB purpose of speedy disposal of IP matters completely set at naught by its functioning: Delhi HC

The Delhi High Court has remarked that in spite of the Supreme Court’s intervention, no progress has been made to strengthen the Intellectual Property Appellate Board (IPAB) or expedite the appointment process of its members. (Merck Sharp & Donne Corp vs UOI).The Court has opined, “..the purpose of the IPAB is for speedy disposal of appeals and rectification applications.. However, this purpose has been completely set at naught owing to the manner in which the IPAB has been functioning since the time it has been constituted.”.The concern over the functioning and condition of IPAB was raised by a Single Judge Bench of Justice Prathiba M Singh in an order passed in two petitions challenging the rejection of Petitioners’ patent applications..The Court noted that the order passed by the Assistant Controller of Patents was an appealable order before the IPAB under Section 117A of The Patents Act..However, the appeal could not be filed in view of the fact that IPAB was not sitting..On a query as to why the IPAB was currently not functioning, the Court was informed that the approval for the extension of the term of the Chairperson was pending before the Appointments Committee of Cabinet (ACC)..The Additional Solicitor General informed the Court that a decision in respect of the extension of the term of the Chairperson of the IPAB was likely to be taken soon by the ACC..The Court took on record an order passed by the Supreme Court in December, 2019, extending the term of the IPAB Chairperson for a period of one year after he attained the age of superannuation as there was no break in service, and remarked that prima facie, once the order of the Supreme Court was passed no further approval was required..“In any event, there could not have been any delay in approval being obtained in order for the Chairperson to continue discharging his functions as the Chairperson of the IPAB. Even insofar as the appointment of the members is concerned, there has been substantial delay..”, the Court added..The Court noted that for the post of Vice-Chairman, 13 applications were stated to have been received and the committee for selection had been notified only on February 12, 2020..As far as the posts of technical members were concerned, the Court added that the Search and Selection committee had sent recommendations for filling up of 5 posts of technical members in September, 2019 but no appointments were made..Observing that the purpose for which IPAB was created i.e. expeditious disposals of Intellectual Property matters had been completely set at naught, the Court said,.“The manner in which the IPAB has been functioning during the last over 15 years shows that at every stage, there has been delay in the appointments being made to the IPAB, both of judicial members and technical members. Further, adequate infrastructure and autonomy is also not granted to the IPAB in order to make its functioning efficient and smooth.. Thus, more than 16 years have passed since the IPAB has been constituted. However, the process of functioning of the IPAB has not been streamlined.”Delhi High Court .The Court added that the IPAB was completely under-staffed and lacked even basic infrastructure..“It is matter of record with that there are more than 4000 cases including 1600 patent cases, which are pending before the IPAB and hence non-assembling and non-availability of infrastructure to the IPAB has severely dented the disposals before the IPAB, and the delays have affected substantive rights of IP owners.”Delhi High court.The Court adjourned the matter with a direction that the Supreme Court's order as well as the present order be placed before the appropriate authorities concerned..Petitioner Merck Sharp & Donne was represented by Advocates Anil Dutt, Aditya Kaushik, Sutapa Jana.UOI was represented by ASG Maninder Acharya with Standing Counsel Harish V Shankar and Advocates Krishnesh Bapat, Shikhar Kishore, Viplav Acharya, Shefali Jaiswal, Gulabsa..Petitioner Pharmatop SCR was represented by Advocates Peeyoosh Kalra, Shukadev Khuraijam, Debashish Banerjee.While UOI in Pharmatop’s petition was representing by Advocates Gaurang Kanth, Biji Rajesh, the other respondents were represented by Advocates Vikrant Narayan Vasudeva, Shaveta Sanghi, Parv Ahluwalia, Sarthak Chiller..Read the Order: