The Government of India constituted the Intellectual Property Appellate Board ("IPAB") on September 15, 2003 to hear and adjudicate appeals against the decisions of the Registrar under the Indian Trade Marks Act, 1999. The Government of India, on May 20, 2003, extended the IPAB on the Patent Law 1970 for appeals on the decisions made by the Patent Office. The IPAB have various powers to entertain the appeal related to potential infringement, anticipation, restoration of lapsed patents, revocation of patents in public interest, revocation of patent for non-working, compulsory license of a patent.
The Government of India follows a parliamentary system, which offers a clear separation of powers in the governance structure. Under this principal, the state is divided into branches, each have separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The judiciary branch is fairly independent of the other two branches (i.e. Parliamentary and Executive). Executive powers are vested to the Central Government, which is assisted by the Cabinet Secretaries. The Central Government transferred functions of the High Courts to the IPAB for appeal in the matters of trade mark and patent with reference to heavy pendency of cases at the level of the High Courts and the requirement of technical expertise for certain disputes (i.e. Patent evaluation). Currently the IPAB is under the executive control of the Department of Industrial Policy and Promotion (DIPP), Ministry of Industry and Commerce where the Indian Legal Service (ILS) officers are appointed on the key positions as administrative and judicial members.
A Public Interest Litigations (PIL) petition was filed on 27 January, 2011, before the Madras High Court to challenge the constitutional validity of the IPAB formed under the Trade Marks Act, 1999 and the Patents Act, 1970 for violation of the Article 14, 19, 21, 50 and 245 of the Constitution of India. A petition was mainly focuses on flaws in the tribunal system and inefficiency in matter of dealing with the appeals in the Intellectual Property matters. The gist of petition was contour against the IPAB by sighting fault in the separation of powers, qualification of judicial and technical members, irregular appointments of members and inefficient administration.
As per the Trade Marks Act, 1999 the IPAB benches are required to be staffed by at least one judicial member and one technical member. While the qualification criteria for a judicial member and Vice-chairperson allows the appointment of Indian Legal Service (ILS) officers and does not have any provision for lawyers with litigation experience to be appointed as judicial members.
The petition was brought forward to highlight the contravene provisions of the present Act by citing the National Company Law Tribunal (NCLT) judgment of the Supreme Court constitution bench where it was clearly stated that Indian Legal Service (ILS) officers cannot hold the position of judicial members since they have no judicial experience. As per findings of the bench in the said case the role of a judge requires certain qualities which can be learnt only through practical experience and persons without that experience cannot be allowed to adjudicate disputes.
As per the out come of judgment the Hon'ble Madras High Court is agreed with petition on the current composition of the IPAB and the eligibility criteria for selection is contravene to the independence of the judiciary and the separation of powers doctrine under the Constitution of India.
Regarding the observation related to selection panel and qualification of the members, court agreed with petition that a technical member appointed in the IPAB also have a role in the decision making process therefore it is critical for the judicial member to have enough legal or judicial competence before pronouncing the judgment. One of the prominent observation which was brought forward in this judgment is related to position of the Indian Legal Service (ILS) officials in the IPAB. Court held that possession of Indian Legal Service (ILS) officers in the IPAB are unconstitutional with regards to the Supreme Court judgment in Union of India Vs. R. Gandhi where person who doesn't have judicial experience is not qualified to be Judicial member and mere working as an executive in the Government department is not equivalent to legal training and experience gained by the Lawyer.
Judicial separation and tribunals were always the matter of dispute since its implementation and time by time the validity of different tribunals (i.e. the National Tax Tribunal (NTT) and the National Company Law Tribunal (NCLT) was challenged in the Court of Law. This time the challenge was made on the IPAB. The Madras High Court has not provided any guideline about requisite qualification of technical member in the IPAB for the Indian Patent Act 1970. Current position of IPAB is not clear as the Central Government have a chance to appeal matter before the Hon'ble Supreme court of India under the Article 226 and 227 of the Constitution of India. Otherwise the current structure of IPAB may be reformed by the Central Government to align with the Hon'ble Madras High Court judgment.