Creation of IPD augurs well for pharma industry

In what can be a big relief to the pharmaceutical industry in the country, the Delhi High Court has recently notified the Intellectual Property Rights Division Rules, 2022, which will replace the erstwhile Intellectual Property Appellate Board (IPAB). Certainly, the creation of Intellectual Property Division (IPD) in the High Court will be a big relief to the pharmaceutical companies in the country which have been looking for an appellate court to resolve their grievances in the Intellectual Property-related disputes.

The IPD will deal with Intellectual Property Right (IPR) matters except cases dealt with by the Division Bench of the Delhi High Court. The statutes under the Copyright Act, 1957; The Designs Act, 2000; The Geographical Indications of Goods (Registration and Protection) Act, 1999; The Information Technology Act, 2000; The Patents Act, 1970; The Protection of Plant Varieties and Farmers' Rights Act, 2001; The Semiconductor Integrated Circuits Layout-Design Act, 2000; and The Trade Marks Act, 1999 are applicable to the new rules. The division will be presided over by Single Judge to deal with disputes and cases concerning Intellectual Property Rights subject matter. Every IPR subject matter or case or proceeding or dispute filed before, or transferred to, the IPD shall be heard and adjudicated by a Single Judge of the Division except those that are to be decided by a Division Bench as per Section 13 of the Commercial Courts Act, 2015.

The Chennai-headquartered IPAB, which was the appellate board for the IPR related disputes in the country, was abolished in 2021 following the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 ('Ordinance'), which is now the Tribunal Reforms Act, 2021. Proposals earlier to relocate the principal office of the IPAB from Chennai resulted in protest from various corners. Now, with the creation of IPD, the cases which will be dealt with by the IPD include all original proceedings, appellate and other proceedings related to IPR including revocation applications, cancellation applications, other original proceedings, appeals and petitions from the various Intellectual Property Offices (IPOs) and all other proceedings which were so far maintainable before the IPAB. All pending proceedings before the IPAB relating to Delhi jurisdiction transferred to the Delhi High Court will also be doing under its jurisdiction.

Of course, the setting up of IPD by the Delhi High Court to deal with IPR disputes augurs well for the pharmaceutical industry as it is an encouraging step taken towards efficient disposal of patent litigations. It is of much significance as there has been a gradual rise in patent litigation in the pharmaceutical sector over the years. The surge in pharma patent litigation in the country is attributed to the amendment introduced to the Patents Act, to bring it in line with Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In 2005, India introduced product patents for pharmaceuticals due to its commitment under TRIPS. The Indian Patent Office started issuing product patents in 2009. As a result, the innovator foreign drug companies started filing infringement suits against domestic pharmaceutical companies, which led to a rise in patent litigation in the pharmaceutical sector.

The Delhi High Court has been the busiest with patent litigation followed by the Bombay High Court and the Madras High Court. The creation of IPD in the Delhi High Court is a significant step which is in line with global practices in this regard. Such IP Divisions or IP courts, which exclusively deal with IPR matters, already exist in UK, Japan, Malaysia, Thailand and China and the creation of IPD with comprehensive rules governing IPR matters, is a right step taken towards efficient disposal of all cases pertaining to patents in the country.

More significantly, at any stage in a proceeding, the Court can constitute a confidentiality club or adopt such measures as appropriate, consisting of lawyers (external and in-house), experts as also nominated representatives of the parties, for the preservation and exchange of confidential information filed before the court including documents, as per the Delhi High Court (Original Side) Rules, 2018. The court can, in any IPR subject matter, also seek assistance of experts (including individuals and institutions) relating to the subject matter of the dispute as may be necessary. The IPD may maintain a panel of experts to assist the court and which panel may be reviewed from time to time.

Overall, the creation of Intellectual Property Division with comprehensive, dedicated rules will not only streamline the proceedings, but will also have a significant impact on the jurisprudence surrounding intellectual property in the country.

(The author is freelance journalist with varied experience in different fields)