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Filling vacant posts in the IPAB – a double-edged sword
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The Intellectual Property Appellate Board (IPAB) in Chennai made an announcement on November 15, 2017, regarding filling up vacant posts. The positions are for a Vice-Chairman and for Technical Members for Trademark, Patent and Copyright.
The IPAB was set up for a speedy disposal of Intellectual Property disputes by transferring the jurisdiction of High Courts on certain matters to the IPAB. It is under the administrative control of the Department of Industrial Policy and Promotion (DIPP), which falls under the ambit of the Ministry of Commerce and Industry. The IPAB is responsible for hearing appeals from the decisions of the Controller of patents and trademarks, among others. The Technical Member of patents aids in adjudication of appeals against the decision of the Controller, and resolves patent revocations along with a Judicial Member.
On one hand, the filling of these posts will result in increased appointments for hearings and faster disposal of disputes that reach the IPAB. However, the filling of the posts may also turn out to be a double-edged sword due to current issues related to the appointment and removal criteria of the IPAB and other tribunal boards.
The crux of the issue arose when the Department of Revenue of the Ministry of Finance notified in the Gazette of India, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These Rules stated new processes for the appointment and removal criteria of persons in the IPAB and other Tribunal Boards.
As per the Rules, the selection committee for posts of Chairperson, Vice-Chairperson and Judicial Members of the IPAB consists of the Chief Justice of India or his nominee, Secretary (DIPP), a Secretary to be nominated by the Central Government, and two experts to be nominated by the Central Government. The selection committee for the posts of Technical Members (Trademark, Patents or Copyright) on the IPAB consists of a member who will be nominated by the Central Government to act as the Chairperson of the Selection Committee, Secretary (DIPP), a Secretary to be nominated by the Central Government, and two experts to be nominated by the Central Government.
As evident, the selection committee for the IPAB posts of Chairperson, Vice-Chairperson, Judicial Members and Technical Members comprises a majority of government-elected executives. Additionally, the removal criteria stated in the Rules places the power of removing the Judges of the IPAB into the hands of the Central Government.
The controversy lies in the fact that, despite the IPAB being a judicial body, the judiciary does not have a considerable role in appointments or removal of persons from the IPAB. The lack of judiciary independence in the running of the IPAB and other tribunals due to the Rules, has resulted in about six challenges before the Supreme Court and four challenges before the High Courts at Delhi, Madras, Bombay, and Gujarat regarding the same.
In past judgements, the High Court and the Supreme Court have repeatedly clarified that the selection committee for appointing persons to the IPAB must be balanced with members from the judiciary and executive, instead of a majority from the executive. Further, any Legislation that does not comply with this decision would be struck down as unconstitutional.
In Shamnad Basheer vs Union Of India, the High Court stated: “the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India. The 1st respondent has totally overstepped and acted in disregard to the law laid down by the Supreme Court in Union of India Vs R Gandhi, President, Madras Bar Association, [(2011) 10 SCC 1] by turning a blind eye. The directions issued therein are meant to be applicable to all the Tribunals…. It has been consistently held that the judiciary should have a substantial role in the selection. It was also held that the process of appointment should substantially be that of members of judiciary.”
Thus, any appointments to the IPAB by the current selection committee according to the Rules would seem unconstitutional and may result in the subsequent overturning of the appointments. Further, since such appointments may be unconstitutional, the cases adjudicated by the appointed persons may face litigation from the involved parties that may allege injustice. Hence, the DIPP would be well-advised to carefully consider whether the time is right for making the appointments for the above-mentioned vacant posts in order to prevent further troubles.
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Proactive steps taken by the Indian Patent office in engaging and addressing issues raised by stakeholders
The Controller General of Patents, Designs & Trademarks (CGPDTM) Office had called for a stakeholders Meeting on the 14th of December, 2016. The details of this meeting were published on the website on January 11, 2017.
There were a quite a few issues raised and suggestions received from the stakeholders at the meeting. Subsequently, the CGPDTM gave clarity on the steps being taken to resolve some of the issues and the improvement of some of the processes.
Some of the details are as follows:
Responding to a query on attorneys having to pay an exorbitant fee for their address change, CGPDTM responded saying that the prescribed fee had to be paid for changing the address. CGPDTM added saying that provision has been made for providing an additional email address.
Responding to another query on patent applications being abandoned even after filing a timely response, CGPDTM acknowledged the fault saying that the electronic entry of the timely response was recorded under incorrect category and that necessary action is being taken. CGPDTM also said that the wrongfully abandoned applications have been recalled.
Another important query was with regards to the inconsistency at the Delhi Patent office regarding the implementation of the CRI related guidelines. The CGPDTM said that a committee had been already formed by the Government to look into the issue and that the committee has already submitted their report.
Also, an enquiry was made at the meeting in relation to the newly introduced three-month extension in Patents Rules. The query was regarding whether the extension may be taken thrice for one month each or whether it should be taken at once for 3 months. The CGPDTM clarified that a single request for an extension, subject to a maximum of three months, is expected as per the rules.
Responding to the allegations of Controllers, in some instances, not examining the divisional application if the parent application has been rejected or withdrawn, the CGPDTM said that necessary directions are being issued to examine a divisional application in accordance with the Patents (Amendment) Rules, 2016.
The CGPDTM were also asked to explain their official stand on PPH (Patent Prosecution Highway), to which the CGPDTM responded by saying that the Government, at present, is not considering it.
The stakeholders were of the opinion that a notice period of two weeks for a hearing was too short. In response, the CGPDTM stated that instructions have been issued to increase the hearing notice, probably to 4 weeks.
Regarding a query related to expediting the examination of applications related to volatile technologies which have a short life, the CGPDTM said that technology-based expedited examination was not possible as per the existing rules.
Details of the issues and responses discussed at the meeting can be found here.
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Patent Office India Published Patent and Design registration Information June 6th, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
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Patent Office India Published Patent and Design registration Information June 27th, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
The publication includes published patent applications, design registration and granted patents, among other information, for the week of June 27th, 2014
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Patent Office India Published Patent and Design registration Information June 13th, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
The publication includes published patent applications, design registration and granted patents, among other information, for the week of June 13th, 2014
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Patent Office India Published Patent and Design registration Information May 30th, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired. Data sourced from Indian Patent Office by Team InvnTree. The attached Pdf can be downloaded here and can also be accessed below. If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
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Patent Office India Published Patent and Design registration Information May 23rd, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
The publication includes published patent applications, design registration and granted patents, among other information, for the week of May 23rd, 2014
You may go through this publication, and if you find patent information that has an impact on your business, then you may take appropriate actions, such as:
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License
Patent Office India Published Patent and Design registration Information May 16th, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
The publication includes published patent applications, design registration and granted patents, among other information, for the week of May 16th, 2014
You may go through this publication, and if you find patent information that has an impact on your business, then you may take appropriate actions, such as:
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Patent and Design Office India Published Patent registration Information May 9th, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired. Data sourced from Indian Patent Office by Team InvnTree. The attached Pdf can be downloaded here and can also be accessed below. If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
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Patent Office India Published Patent and Design registration Information May 2nd, 2014
Indian Patent Office publishes patent information on a weekly basis (on Friday each week). This is a public notification, enabling you to take appropriate action if desired.
Data sourced from Indian Patent Office by Team InvnTree.
The attached Pdf can be downloaded here and can also be accessed below.
If you would like to get weekly email updates of Indian Patent office's published patent information, Subscribe to this service free of cost
The publication includes published patent applications, design registration and granted patents, among other information, for the week of May 2nd, 2014
You may go through this publication, and if you find patent information that has an impact on your business, then you may take appropriate actions, such as:
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License
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