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Spicy IP bloggers file writ against IP Appellate Board ‘infirmities’

NUJS Kolkata professor Shamnad Basheer and a music company filed two public interest litigations (PILs) in the Madras High Court to mend gross “infirmities” and arbitrary “tribunalisation” in the constitution and functionality of the Intellectual Property Appellate Board (IPAB) and the Copyright Board.

Senior advocate Arvind P Datar was instructed by advocate Ananth Padmanabhan for both the writ petitions taken up together for hearing yesterday by the division bench comprising of Chief Justice M Y Eqbal and justice T S Sivagnanam.

According to blog Spicy IP, which was founded by Basheer, the bench has issued notice to the central government for filing of reply within three weeks as the petitioner’s arguing counsel Datar successfully convinced the court that judicial discretion lacked in the appointments of members of the IPAB.

The bench was reluctant to entertain the petition initially on the grounds that they could not interfere with appointments [to IPAB] made by the Supreme Court a contention which Datar countered by stating that none of the appointments had been done after consulting the apex court, reported Spicy IP. Datar highlighted this to be the precise problem and supported it by written submissions placing reliance on the Supreme Court judgement of Union of India Vs R Gandhi (National Company Law Tribunal (NCLT) case).

Basheer’s research assistant Prashant Reddy helped on the case and blogged on Spicy IP that NCLT case was the basis of both the petitions serving a precedent for having had the SC strike down key provisions of the company tribunal in that case.

“The Supreme Court had struck down those provisions [for the creation of NCLT] on the grounds that they violated the ‘Separation of Powers’ doctrine which requires the judiciary to be independent of the Executive and also the fundamental right of citizens to have their disputes adjudicated by person who possess the requisite judicial independence and qualifications to discharge judicial functions. It bears noting that Mr. Arvind Datar was the lawyer who successfully argued the NCLT case before the Supreme Court. Ananth was also a part of the team which briefed Mr. Datar for the Supreme Court hearings,” Reddy explained.

A number of merit-based contentions were advanced to question the IP appellate bodies such as bureaucraticsing the judicial functions of the tribunals, inept qualification and aptitude of both the technical and judicial members appointed to IPAB, inefficient administration etc.

“It is doubtful whether the Central Government actually investigated the viability and suitability of the IPAB, especially since there has been a concerted move by the Central Government bureaucracy to. Starting from 1999 the Central Government attempted to transfer three crucial functions of High Courts by creating new tribunals such as the National Company Law Tribunal, the National Tax Tribunal and the Intellectual Property Appellate Board.”

Further, the role of Indian Legal Service (ILS) cadre in the process of tribunalisation has been pointed out in the petition.

“ILS officers are meant to serve as Legal Officers in the Ministry of Law and Justice and are usually lateral hires. These officers are usually involved only in policy matters and do not represent the Central Government in any litigation. Despite these officers not having any practical judicial experience both the IPAB and the NCLT were created in such a manner that these officers could be appointed as judicial members to both tribunals. The reason that this was possible is because ILS officers are in control of the Legislative Department of the Ministry of Law and Justice and it is these officers who prepare the final version of any legislation which is tabled before Parliament. To put it simply, the ILS officers have been drafting legislations in such a manner to provide themselves with post-retirement havens.”

Most importantly the current petitions have been prompted by the need to streamline the inherent incompetence evident in the dismal pendency rate of cases before the appellate boards, as per Spicy IP.

“While the IPAB was probably set up to speed up pendency, the actual disposal rates published by the DIPP shows the complete inefficiency of the system. Of the 2245 trademark cases transferred to the IPAB, only 901 cases were decided in this period. Of the 155 patent cases transferred to the IPAB only 21 cases were decided by the IPAB.”

Fought in “public interest”, the cost of the case is wholly borne by Basheer with arguing counsel Datar acting on a pro bono basis.

Shambo Nandy, Sai Vinod Nayani and Debanshu Khettry were the other NUJS students who helped on the case.

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