The abolishment of various Boards and Appellate Tribunals by Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021 was promulgated by the President of India in April, 2021. Later, in July, 2021, the Delhi High Court decided to establish an Intellectual Property Division to deal with the matters related to Intellectual Property Rights.
Intellectual Property Division
A committee constituting of the hon'ble Chief Justice of Delhi High Court, hon'ble Mr. Justice D.N. Patel, hon'ble Ms. Justice Pratibha M. Singh and hon'ble Mr. Justice Sanjeev Narula was formed to address the issue of large influx of IPR cases in the Delhi High Court. Based on the committee's recommendations, the hon'ble Chief Justice directed the creation of the Intellectual Property Division, a specialized authority to deal with the IPR cases. The said division shall not only exercise its jurisdiction in the original proceedings but also Civil Writ Petitions, Civil Miscellaneous Petitions, Regular First Appeal and First Appeal from Order (FAO) related to Intellectual Property Rights. Moreover, the fresh petitions filed after abolition of the Appellate Board shall also be admitted by this division. The creation of the division will be a significant step for disposing the IPR cases effectively. Such specialized divisions within courts can also be witnessed in other developed and more effective countries such as the United Kingdom, Japan, Malaysia, Thailand etc. The matters enlisted in the IP division shall be heard and decided upon by the nominated judges from the Commercial Division of the Delhi High Court. Therefore, not constituting any basic structure-related change.
The abolishment of the Appellate Board was mainly because of delay in delivery of justice, among others. There was no appointment of the Chairman and other members of the board, which led to non-functionality of the board for three years. Despite such insufficiency, the board managed to dispose of certain cases. However, it is also essential to address the primary challenges that can arise while transferring the cases from the scrapped appellate board to the new division. It can lead to an accumulation of undecided cases. The Delhi High Court has more than 2500 pending commercial cases1 and transfer of additional such cases shall only add to the burden. The concern was also presented before the Rajya Sabha in the Report of IPR Regime in India, wherein the it was suggested to reinstate the appellate board. Moreover, the procedural as well as substantive technicalities can add to the challenges. It is quite essential that the judge must have the requisite knowledge in a considerable amount to deal with an issue. An additional suggestion can be that the cases can be first heard by the technical members and a report pertaining to the important terms can be provided to the judge for his/her perusal. But the factor of time management has to be considered simultaneously.
The Roster of Sitting of the hon'ble judges of Delhi High Court stood amended with effect from 08 July, 2021 with Hon'ble Mr. Justice Suresh Kumar Kait, Hon'ble Mr. Justice Jayant Nath, Hon'ble Ms. Justice Anu Malhotra, Hon'ble Mr. Justice C. Hari Shankar, and Hon'ble Mr. Justice Sanjeev Narula been nominated to function as 'IP Division'.
Delhi High Court Intellectual Property Rights Division Rules, 2021
To streamline the processes of the division and establish uniformity as well as non-ambiguity, the hon'ble Delhi High Court came up with the draft rules and the members of the Bar have been requested to send in their comments and suggestions within two weeks from the date of publication i.e., October 8, 2021.
The Preamble of the rules states that the power to make and introduce such rules has been conferred upon by the Delhi High Court Act, 1966 and the Code of Civil Procedure, 1908 along with certain specific statues related to Intellectual Property, for the exercise of division's original and appellate jurisdiction. The rules consist of an amalgamation of 31 rules providing definitions, filing & nomenclature as well as procedure for various petitions & appeals and submissions as well as time limit of contentions. The rules formed by the committee aimed at nearly eliminating the challenge of dealing with a huge quantum of cases already existing in the Delhi High Court and being transferred from the Appellate Board.
The rules provide the meanings and definition of all the terms including Intellectual Property Rights and Intellectual Property Division. It also provides specific rules regarding the original as well as appellate proceedings, some of which are discussed here. The jurisdictional powers are conferred upon a single judge of the division and there is no mention of benches of the division. The nomenclature has also been changed to include Intellectual Property Division (IPD). Any registered patent or trademark agent or any person possessing specific knowledge of the subject matter can form a part of the audience during the proceedings before the IP division in order to assist the court and the legal practitioners or counsels appearing on behalf of the parties. The rules also provide a discretion to the judges to appoint two legal researchers from the field of IPR who can help them in techno-legal issues. Moreover, for cases other than those related to patents, the division can pass the summary judgment without filing an application for the same under the Civil Procedure Code. Further, as in any other court, the IPD shall have the powers to consolidate the matters with same or similar issues irrespective of the fact whether the parties are same or not. It also provides that the advance copy has to be sent at the address for service along with an email at least 48 hours in advance upon the respondents including the counsels.
The IPD rules provide a single document to address the dynamic and everchanging nature of Intellectual Property Rights involved suits and petitions. However, it fails to address the issue of how to treat repetitive offenders or the procedures to impose penalties. It was also a chance for the committee to concertise the jurisprudence with respect to damages and propose a uniform method to allocate and calculate damages. It must have been ensured that the stakeholders concerning Intellectual Property Rights in the Indian territory gain a holistic view of the intricacies related to IPR.
Conclusion
The Intellectual Property Division instituted by the hon'ble Delhi High Court with an objective to ensure uniformity and non-ambiguity in dealing with the IP related matters along with ensuring speedy disposal of the cases. Whether or not the decision to create such a division is effective or not is a matter of time and factors such as how quickly the cases are dealt with and the number as well as experience of judges. It is only an initiative taken up by the high court at the moment and the rules are also in their nascent stage. However, the processing costs and the overall costs of review and petition might be higher than they were in the Appellate board leading to slow disposal of cases and in turn, late delivery of justice. The stakeholders might also take time in understanding the processes as well as nomenclature with respect to the IP division. Nevertheless, the rules also provide the forms along with the required documents under Schedule I for filing the petition as well as appeal, differentiated on the basis of subject matters. There might be some amendments and modifications needed in the IPD rules to consider the potential hurdles that could arise in the future, so that the forum sets an example of efficiency and effectiveness. Therefore, this analysis aimed at providing the prima facie understanding of the division as well as the draft rules.
Footnote
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
