By Vikrant Rana, Priya Adlakha and Tanvi Bhatnagar
As covered in our previous news alert here, the Hon’ble Delhi High Court organized a National Seminar on ‘Adjudication of IPR Disputes in India’ on February 26, 2022 at DRDO Bhawan, Rajaji Marg, New Delhi. The Seminar on IPR Disputes also aired live on the official YouTube channel of the Delhi High Court and can be viewed at the link- https://www.youtube.com/watch?v=_21WiHl33Tw in case you missed it.
Hon’ble Mr. Justice N.V. Ramana, Chief Justice of India was the Chief Guest for the Seminar ‘Adjudication of IPR Disputes and Mrs. Nirmala Sitharaman, Hon’ble Union Minister of Finance and Corporate Affairs was the Guest of Honor.
The Seminar was attended by Hon’ble Judges of Supreme Court of India, Hon’ble Chief Justices and Hon’ble Judges of various High Courts, Judicial Officials, Senior Counsels, members of the bar, and members of the IP fraternity.
Hon’ble Mr. Justice D.N. Patel, Chief Justice, Delhi High Court, addressed the welcome note with a warm welcome to all the attendees of the Seminar. He mentioned that post abolition of IPAB, 2500 IPR matters were transferred to the Delhi High Court. In view thereof, to streamline the inflow of such cases, the Intellectual Property Division (‘IPD’) was established by the Delhi High Court. He congratulated the IPD committee for their sincere work in drafting of the IPD Rules and announced that the IPD Rules have now been finalized and notified on the website of the Delhi High Court. The Rules can be accessed from here https://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_ZY7EJQHTR3S.PDF.
Hon’ble Ms. Justice Pratibha M. Singh, Chairperson of the IPD, discussed at length the circumstances that led to the birth of IPD. She further threw light at various key features of the IPD Rules. She further mentioned that IPD is a defining step in procedural reform and the manner in which IPR cases would be handled going forward. She also mentioned that as per the data in the Delhi High Court, there is a substantial increase in patent disputes. From 2000-2004, only 3 patent cases were filed but from 2015 onwards, the total number of fresh patent cases filed is approximately 300. Further, it was also brought into light that 11,000 IPR cases have been filed in Delhi High Court since 2000, out of which 90% cases have been disposed off. The total number of pending cases after the transfer of the cases from IPAB will be between 4000-5000.
The Hon’ble Finance Minister, Mrs. Nirmala Sitharaman, discussed how supporting and encouraging Intellectual Property Rights will have a strong ripple effect on the ecosystem and revenue of the country. She mentioned that 28,000 patents were granted last year as opposed to 4,000 patents granted in 2013-2014. Further, trademark and copyright filings have also increased over the years, last year 2.5 milllions trademarks and 16,000 copyrights were registered. She also mentioned that Pilot Scheme (Start-Ups Intellectual Property Protection) which was introduced in 2016 to support technology and innovation, is now extended to 2023.
Hon’ble Mr. Justice N.V. Ramana, discussed the need of provisions for stronger enforcement of the Intellectual Property Rights as well as the need to fill the existing vacancies in the Judiciary, which will ultimately help in timely disposal of cases and stressed on the improvement of judicial infrastructure.
The Panel Discussion on ‘Adjudication of IPR Disputes’ was moderated by Hon’ble Ms. Justice Pratibha M. Singh, and the panelists included – HMJ Sonia G. Gokani, Gujarat High Court, HMJ Soumen Sen, Calcutta High Court, HMJ Gautam S. Patel, Bombay High Court, HMJ M. Sundar, Madras High Court and HMJ Sanjeev Narula, Delhi High Court.
Key Highlights of Panel Discussion on Adjudication of IPR Disputes
Burden of High Courts after abolition of IPAB:
Hon’ble Ms. Justice Gokani, mentioned that the Gujrat High Court exercises appellate and supervisory jurisdiction in IPR matters and as of now Gujarat has 34 Patent suits pending before it. The District judiciary in Gujarat has approx. 4000 IPR matters pending before it. After abolition of IPAB, approximately 400 matters that have been transferred to the High Court. She also mentioned that the Gujarat High Court is also thinking on the line of establishing an IPD for dealing with IPR cases.
Hon’ble Mr. Justice Soumen Sen highlighted that approximately 600 matters are transferred from IPAB to the Calcutta High Court and they have large filings at District level as well.
Hon’ble Mr. Justice Gautam S. Patel emphasized that all the High Courts should establish an IPD to streamline litigation. He further mentioned that only the Principal Bench at Mumbai has original jurisdiction to deal with IPR cases and the Benches at Aurangabad and Nagpur only have appellate jurisdiction. Therefore, there are various administrative issues at present which needs to be dealt with before thinking about establishing an IPD in Maharashtra. He also threw a light on a bizzare issue faced by Maharashtra which is the lack of space to store all the physical files of the cases that are transferred from IPAB.
Hon’ble Justice Sanjeev Narula mentioned that in Delhi High Court in 2013, only 17 patent cases were filed, in 2014 only 9 cases, in 2015 only 1 case and now gradually since last few years 50 patent case per year are being filed. There’s substantial growth in patent cases. From the cases transferred from IPAB, 750 cases have been registered and 1274 are in process of registering.
Technical qualifications for the Judges of IPD:
All the panelists were of the unanimous view that is not a pre requisite for a judge to have technical qualifications to deal with IPR matters and what is actually needed is enthusiasm to learn and that the judges can seek assistance from the counsels and their law researchers for better understanding of the subject and thereafter apply his/her own intellect to decide the case. Hon’ble Mr. Justice Gautam S. Patel stated that it is impossible to marginalize judges only as IP Judges, they should be given a chance to move in an out of IPR.
Having a uniform system across the nation to deal with IPR disputes:
Hon’ble Mr. Justice Gautam S. Patel emphasized that we all need to take a step back and to reassess how we can deal with IP matters. He emphasized that we should have a common procedural norm on how we approach IP matters and stated that IP litigation is not luxury litigation and is a survival litigation.
How to expedite the final adjudication in IPR matters sooner:
Hon’ble Mr. Justice M. Sundar mentioned that the best tool available for speedy disposal of IPR matters is Order XVA of the CPC, 1908 (as amended by the Commercial Courts Act, 2015) and then gravitating towards Order XIII- A, CPC, 1908 (as amended by the Commercial Courts Act, 2105), for summary judgment. He also recognized the importance of imposing damages and costs in case of frivolous litigation and for mounting frivolous defences before Court.
He also spoke about redaction of evidence under Order XVIII Rule 5 CPC, which can be used a tool to reduce time for recording evidence ultimately helping in speedy disposal of cases.
A Step forward taken by Delhi High Court:
Under the Copyright Act, the Copyright Board (which was eventually merged_with IPAB) had the power to fix license fee for royalties for music played on FM radio.
Hon’ble Mr. Justice Sanjeev Narula shared his experience that while adjudicating on a matter relating to fixation of royalty to be paid by the broadcasting channels, he directed issuance of a public notice inviting the comments of the stakeholders on the subject. Further, he with the help of the IT Department of the Delhi High Court created an official email id to receive the comments of the stakeholders, which helped to access all the data at one source.
The Culture of awarding Damages in IPR matters:
Hon’ble Mr. Justice G.S. Patel mentioned that judges need to get rid of the morbid fear of money. IP claims of damages includes loss of potential, loss of future and loss of damage to process of creativity. Damages are an estimation made by the court to discourage infringers from infringing IP rights of another person. An infringer must know that there are real money consequences for infringement. The court can impose heavy damages as well as punitive and exemplary costs for infringement.
Hon’ble Mr. Justice M. Sundar threw light on Section 35A CPC (as amended by the Commercial Courts Act, 2015) which provides for ‘Costs’ and mentioned that the cap is now removed in imposing damages and therefore the judges should use the provision practically and not hesitate on imposing huge damages in IPR cases.
Hon’ble Mr. Sanjeev Narula mentioned that IPD recognize the importance and culture of grant of damages in IPR matters and the court can take assistance of external agencies in computation of damages.
Scientific and Technical Assistance required in IPR matters:
The Hon’ble Panelist gave a consensus that there should be a national panel of scientific experts to give expert opinion on all technical matters, which could be accessed by all the High Courts.
The Seminar was a first of its kind as all the High Court having original jurisdiction on IPR matters had come together for a discussion about importance of IPR matters and a way forward to deal with them. It is clarified that Gujarat High Court does not have original jurisdiction in respect of IPR suit, but under Patents and Designs Act, the suits gets transferred to the High Courts on filing of rectification proceedings. After abolition of the IPAB, Gujarat High Court now has original jurisdiction in respect of Rectification proceedings under all IP Acts.
We will be covering the IPD Rules in our next article shortly. Meantime all stakeholders are informed that the Hon’ble Delhi High Court has revised its roster and from Monday, the IPD comprising of Hon’ble Ms. Justice Pratibha M. Singh and Hon’ble Ms. Jyoti Singh has started hearing cases concerned with IPR.