Creation of Intellectual Property Division and allied Rules

The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, April 2021 led to the abolition of various Tribunals including the Intellectual Property Appellate Board. To cover the gap created by the exit of IPAB, the Delhi High Court decided to establish a separate Intellectual Property Division to deal with the matters related to Intellectual Property Rights. Such specialized divisions within courts can also be witnessed in other countries such as the United Kingdom, Japan, Malaysia, Thailand etc. This article will elaborate the details of this newly created IP Division.

The Intellectual Property Division

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 structural change. Presently, 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 Narulabeen have been nominated to function as ‘IP Division’.    

The IPD shall not only have 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 this division could be a significant in disposing the IPR cases effectively and fill up the lacuna left by the glaring delays in the IPAB.  However, it is also anticipated that this step may lead to an accumulation of undecided cases with the Delhi High Court, which already has more than 2500 pending commercial cases (here) and transfer of additional such cases shall only add to the burden. The concern was also expressed by the Rajya Sabha in the Report of IPR Regime in India, wherein the suggestion was to reinstate the appellate board. Moreover, the procedural as well as substantive technicalities can add to the challenges.

It is the author’s suggestion 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.

Delhi High Court Intellectual Property Rights Division Rules, 2021

To streamline the processes of the IP division and establish uniformity as well as non-ambiguity, the Hon’ble Delhi High Court came up with the draft rules for the same. The rules formed by the committee are aimed at 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.  

It provides specific rules regarding the original as well as appellate proceedings. The jurisdictional powers are conferred upon a single judge of the division and there is no mention of benches of the division. 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 a 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.

The IPD rules provide a consolidated document to address the dynamic nature of Intellectual Property Rights suits and petitions. However, it does not address the issue of how to treat repetitive offenders or the procedures to impose penalties.

The Way Ahead

Whether the decision to create such a division is effective or not is a matter of time and factors such as expediency and the number as well as experience of judges will determine its success.  The processing costs and the overall costs of review and petition might be higher than what 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, it is a welcome move, and it is expected that the newly created IP Division will be beneficial for IP stakeholders.

Publication in the Official Gazette can be found here.

About Tanya Saraswat 1 Article
Tanya Saraswat is pursuing BBALLB (Hons.) at School of Law, Narsee Monjee Institute of Management Studies. She is an enthusiast and a learner. She is interested in Intellectual Property Rights and Human Rights. She tends to research on current updates and cover the same through her writing. Apart from writing and researching, she is also a dancer. LinkedIn Profile Link: https://www.linkedin.com/in/tanya-saraswat-4b2171190/

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