The Delhi High Court hosted a ‘National Seminar on Adjudication of IPR Disputes in India’ on February 26, 2022, at the DRDO Bhawan, Rajaji Marg, New Delhi. The Seminar was live-streamed on the official YouTube channel of the Delhi High Court and is available at this link:
Hon’ble Justice N.V. Ramana, Chief Justice of India was the Chief Guest, and Mrs. Nirmala Sitharaman, Hon’ble Union Minister of Finance and Corporate Affairs was the Guest of Honor of the Event. The Seminar was attended by Judges of the Supreme Court and high court judges of India, Judicial Officials, Senior Counsels, members of the Bar, and members of the IP fraternity.
Justice Sonia G. Gokani from the Gujarat High Court, Justice Soumen Sen from the Calcutta High Court, Justice Gautam S. Patel from the Bombay High Court, Justice M. Sundar from the Madras High Court and Justice Sanjeev Narula from the Delhi High Court, were part of the panel discussion on ‘Adjudication of IPR Disputes in India’ moderated by Justice Pratibha Singh. The common question posed to initiate the discussion was ‘how IP disputes were adjudicated prior to the abolition of IPAB, and the litigation that can be expected now’.
A notable comment made by Justice Pratibha M. Singh during the discussion is that, there is a misplaced notion that intellectual property (IP) is an elitist field of law. Justice Singh opined that the interlinking of IP Courts at the Commercial Court level and the Intellectual Property Divisions in the High Court would establish a platform providing quick, transparent and high quality IPR adjudication. She further opined that the establishment of the IP Division was justified due to the 4000-5000 pending cases post the abolition of the IPAB.
1. Do Judges in IPD need Technical Qualification/Knowledge?
Justice Singh asked the panel whether judges in the IP Division need certain technical qualifications in order to ensure technical judging. To this, Justice Gokani responded that she was not of the opinion that the appointment of judges should be based on the existence or non-existence of technical knowledge. Justice Sen while agreeing with Justice Gokani, stated that judges without technical qualifications have also pronounced remarkable landmark judgments. He mentioned that judges require the enthusiasm to learn and can seek assistance from the counsels and their law researchers for better understanding of the subject and thereafter apply their own intellect to decide the case. Justice Patel remarked that judges must not be marginalized only as being IP judges and they should be able to move in and out of IP Assignments periodically. Hence the panel was unanimous in stating that technical qualification is not required.
2. Can we have harmonized statues and uniform system across the High courts?
Justice Singh asked whether High Courts across the country could have a uniform IPR adjudication process, to which Justice Patel answered that we should have a common procedural norm on how we approach IP matters and stated, “IP litigation is not luxury litigation; it is survival litigation”.
3. How can IPR matters move from interlocutory injunctions with more finality, and restrict time consumption of courts?
Justice Sundar answered that the best tool was to apply Order 15A of the amended Civil Procedure Code (CPC) followed by a summary judgment under Order XIII-A, CPC. He further elaborated how the Madras High Court had applied this very effectively thereby ensuring speedier finality in matters wherein the rate of disposal is 2.5 times more than the rate of institution.
4. What kind of steps are taken by the courts to adjudicate Music Royalty cases?
The next question raised by Justice Singh was regarding the kinds of litigations that have been witnessed with respect to music royalty and the steps taken by the courts to adjudicate them. Justice Sanjeev Narula shared his experience of adjudicating a matter relating to fixation of royalty to be paid by the broadcasting channels, during which he directed issuance of a public notice inviting the comments of the stakeholders on the subject. Further, with the help of the IT Department of the Delhi High Court, an official email ID was created to receive the comments of the stakeholders, which helped to aggregate all the data at one source. A nodal counsel was also appointed to collate all the arguments from other counsels and present them to the court. Justice Singh appreciated this innovative method of addressing IP issues.
5. Opinions about culture of damages, and how to inculcate this culture in IP matters:
Justice Patel explained that IP claims are not only for past loss, but for loss of potential future profits including damage to creativity related to copyright, patent, trademark or designs. He stated that ultimately, the estimation of the measure of damages must be made by courts and these must be aimed at ensuring that the infringers are aware that they would be facing real financial consequences. He suggested two ways through which infringement could be discouraged, the first being heavy damages imposed on infringing parties based on reasonable measures and second being the punitive and exemplary cost for mounting a frivolous defense. Justice Sundar further supplemented and stated that the amendment in Order 35A of the CPC had removed the cap on imposing damages for frivolous litigation, which may help in stopping counsels from wasting time of the courts.
6. Views on having a national panel of scientific and technical experts to assist Judges:
Justice Pratibha Singh stated “we now acknowledge that Judges in the IP division may require scientific and technical assistance, to address this we have formed two-fold approach in the rules; first is to provide pool of technically qualified researchers along with law researchers to assist the court, and second is to provide courts with list of scientific experts across India and abroad and empanel them to assist the courts as and when their area of expertise is needed.” She then asked the panelists to share their views on empaneling a panel of scientific and technical experts.
According to Justice Sonia G. Gokani this was a laudable idea and would be largely beneficial in decision making. She explained how helpful the national panel of experts can be by citing an example of a case, which involved a patent for a machine manufactured in Surat and it required testing of source code, for which it was difficult to find persons with the necessary expertise within India. Ultimately, the parties agreed to hire an expert from the US at a phenomenal fee.
Justice Soumen Sen said that the IP division in every High Court should have technical experts in the research team to assist judges, and further suggested that the patent office could provide assistance in IP division.
7. What should be the impact of public interest in IPR?
According to Justice Gokani and Justice Narula, human rights have always been a force behind IP laws, and hence that element could never be ignored, for example we have compulsory licensing in patents and so on.
Justice Patel said public interest pervades IP law, citing examples of hybrids in biotechnology, hybrids in seed, and others. Justice Sundar said law providing for monopoly is in public interest and innovation in bio-medical area is example of interference of public interest in IP. Justice Singh mentioned that it was not just the patents in which public interest played a role, as decisions in trademark cases have been made from the consumer’s point of view.
8. Comments on National Repository of IPR Decisions:
Justice Singh highlighted the need for a national repository of IPR decisions which would aid in knowledge dissemination and growth of IP jurisprudence. It was also asserted that India’s position as the pharma hub is primarily because of its enablement through India’s rich IP jurisprudence. Justice Pratibha took suggestions from Justice Neeta Gupta who decided two important pharmaceutical cases. Justice Gupta stated that Indian Jurisprudence currently has precedents covering all aspects of IP laws, thus reducing the need to rely on judgements of foreign courts. According to Justice Gupta, in patents cases the issue of construction of claims takes a long time, and the faster resolution of this issue would benefit from having a national pool of experts to assist the court.
The panel discussion moderated by Justice Pratibha Singh threw light on importance of IPR matters and a way forward to deal with them. The discussion helped the IP fraternity to understand the view of judges and the steps they desire to take while dealing with IP disputes further.
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