India: A crutch for the limbless IPAB
Recently the Delhi High Court came up with a very unconventional order. It came in the context of Mylan Labs’s writ petition in Mylan Laboratories v Union Of India & Ors, asking for the stay of order of the deputy controller of patents in view of the non-functioning of the Intellectual Property Appellate Board (IPAB), due to its vacancies and lack of quorum and in the context of the high pendency of cases.
Justice Midha, in his order, applied the doctrine of necessity to provide crutches to the limbless IPAB. The court directed the dysfunctional IPAB to hear urgent matters pertaining to trademarks, patents and copyright along with the technical expert of the Plant Varieties Protection (PVP) Authority, Onkar Nath Singh.
It is important to note that a total of 3,935 cases are pending adjudication in the IPAB across all the benches. Patent matters alone account for 617. Not a single patent case has been heard in since 2016.
The Constitution and current status of the IPAB
The IPAB was established and commenced functioning on September 15, 2003 with appellant jurisdiction to dispose of matters under the Patents Act, Trade Marks Act, Copyright Act and the Plant Varieties Protection Act. As per section 84(2) of the Trade Marks Act, the IPAB bench comprises one judicial member and one technical member. The technical member is different for each subject-matter.
