Anarchy, Apathy and the IPAB: A Fervent Plea to the IP Community

The Intellectual Property Appeallate Board (IPAB) is the cynosure of international eyes. Under the leadership of a much admired Justice Sridevan, it recently upheld a landmark compulsory licensing order involving an excessively priced cancer drug. And it continues to proffer bold jurisprudence time and again! 

Unfortunately, Justice Sridevan notwithstanding, this body is patently unconstitutional, rendering its orders legally suspect! We pointed this out in a writ petition two years ago. Despite our best efforts, the matter has simply not made any headway at the Madras High Court! And in the interim, a blatantly unconstitutional body continues to surf the IP wave, delivering one IP judgment after another. Worse still, the IPAB continues to face a severe resource crunch, including a space constraint that caused some broken bones, amongst other calamaties. And in the meantime, an IP ecosystem comprising some of the finest attorneys, judges, policy makers, civil society activists and other public spirited souls sit back and do nothing!

Resource Constraints

The tribunal’s chief, Justice Prabha Sridevan lamented the lack of resources and infrastructure in at least two reports submitted to the court. We are given to believe that the IPAB Chairman has had to cancel many a circuit sitting for want of resources! And that written orders have been delayed owing to want of secretarial staff. More importantly, she is perhaps the only serving member of a tribunal bold enough to categorically state that the body over which she presides is an unconstitutional one, particularly in terms of its process of appointments. The two detailed reports submitted by the Justice Sridevan in the writ petition before the Madras High Court categorically highlighting the apathy of the Central Government towards the IPAB can be accessed from here and here. 

The Business Standard noting the sad state of affairs noted that: 

"The Intellectual Property Appellate Board (IPAB) has informed the Madras High Court that it is facing acute fund crunch and doesn't even have the money to pay rent for its office space. Its rent allocation for the current financial year, Rs 14 lakh, will suffice only for seven months, said IPAB Chairman Prabha Sridevan, in a report to the court.
… 
The financial requirements for IPAB's circuit sittings in other cities are also not met on time, making it tough for the tribunal to hold more sittings in other cities, the report added." 

The Chaswal Saga

Recently, Justice Sridevan refused to sit in on a search cum selection committee body, since it was headed by a government secretary. This case pertained to the selection of one Mr Chaswal as a “trademark” technical member. Prashant blogged on this previously over here and here. This sordid story that casts serious doubt on the IPAB appointment process is analysed indepth in a SpicyIP report here. 

The report examines the controversy behind the appointment of Chaswal, who'd been found to lack credible IP experience of a magnitude serious enough to warrant an appointment to India's top IP resolution body. He then took the matter to court and was appointed after the search committee took a second look at his documents. At this stage, we're not sure if these documents validate Chaswals’ experience with contentious TM matters. Curiously enough, a quick check on Manupatra revealed that he'd participated in only one contentious trademark infringement proceeding before the Delhi High Court [MANU/DE/0649/1994]. But then again, Manupatra does not hold the entirety of TM cases. And it certainly does not hold details of contentious TM disputes before the registry. Given the fact that our patent and trademark databases at the IPO website leave much to be desired, searching decisions by counsels' name is tougher than finding a needle in the haystack. 

If it turns out that Chaswal does not have any significant IP experience, and if the selection committees decision to appoint him comes only out of a desire to avoid further legal skirmishes, we’ve effectively ended up facilitating yet another lousy appointment to the IPAB. Readers will remember the faulty appointment of Syed Obaidur Rahman, a figure who features in our writ, and who claims to have been involved in TM matters in the late 1800’s, before he himself was born!

It is also interesting to note that during this court reordered reexamination of Chaswals’ record/credentials, the government invited Justice Sridevan to be one of its members on the selection committee. However, despite her position as an ex judge of the Madras High Court and the chairman of the IPAB, the government did not see it fit to appoint her as Chairman. Rather, they opted for it to be headed by one of their own, namely, the secretary of the DIPP, Ministry of Commerce. Not too surprisingly, Justice Sridevan flatly refused stating that as per NCLT norms, only the Chief Justice or his/her nominee has to necessarily chair the selection committee meeting. 

She also sent a written submission to this effect to the Delhi high court before whom Chaswals’ petition was pending. Unfortunately, the government decided to go ahead with the selection committee meeting without her and proceeded to appoint Chaswal. Given this unfolding of events, the Delhi High Court appears to have treated it as fait accompli and simply took Justice Sridevans’ complaint on record and disposed off the matter. Chaswal’s appointment letter is expected to issue any moment now. 

Apathy and the IP Fraternity

On a larger note, it is a travesty of justice that the IPAB continues functioning in its current unconstitutional and ill-equipped form. What is even more tragic is the fact that the key IP stakeholders in India are fairly nonchalant about IPAB reform, despite fighting heavy duty cases at the IPAB. Our Minister of Commerce Shri Anand Sharma speaks highly of the compulsory licensing decision that made international waves, but has done next to nothing to ramp up resources for a body that generated this popular order. 

While one hears stories of excessive lobbying by a couple of prominent IP lawyers at the time of constitution of the IPAB (as to whether or not it should be located in Chennai, Delhi or Mumbai), one has not heard much by way of their involvement in the affairs of the IPAB after this. However, credit where credit is due. An IP association in Chennai, the IPRAA (IPR Attorney Association) filed an intervention in the IPAB writ that we had filed, advocating for more resources for the IPAB. And the Asian Patent Attorneys Association (India Group), has been agitating IPAB issues (in relation to circuit sittings) before the Delhi High Court, through reputed IP lawyer, Pratibha Singh. Apart from them, none of the other IP Bodies in India have shown any interest in helping reform the IPAB, placing it on a firmer constitutional pedestal and ensuring it has more resources. 

Leading IP attorneys ought to consider taking a pay cut and applying for these coveted IPAB positions (as trademark/patent technical members). These posts are not the governments' fiefdom to be only occupied by those within the fold...or the sole preserve of those that endorse the reincarnation theory and claim to have argued IP cases dating back to the 1800’s! 

Unless IP stakeholders (clients, lawyers, law firms, industry associations, civil society and policy makers/wonks) begin to evince interest in revamping the IPAB, it will rot and wither away, as have many of our institutions in the past. If we care about IP dispute resolution and the evolution of sound jurisprudence, we must act ..and act quickly!

By: Sai Vinod and Shamnad Basheer