Tulip Kanth

New Delhi, March 1,2022 : The National Seminar on Adjudication of IPR Disputes in India was organized by the Delhi High Court on February 26 to introduce its Intellectual Property Division which will be handling all the IP-related litigation. Alongwith this, two new Rules, namely- the Delhi High Court Intellectual Property Rights Division Rules, 2022 and the High Court of Delhi Rules Governing Patent Suits, 2022 were also introduced at this seminar.

This move has been appreciated by the Chief Justice of India, N V Ramana, who was the Chief Guest at the Seminar, Chief Justice of Delhi High Court, D N Patel and Union Finance Minister, Nirmala Sitharaman, who was the Guest of Honour. The seminar was attended by various Judges of the Supreme Court , High Courts and District Courts along with many advocates, stakeholders and bureaucrats.

A very informative technical Panel Discussion was conducted soon after the speeches of the dignitaries. The Panel consisted of eminent Judges from five Courts i.e. Justice Sonia G. Gokani, of Gujarat High Court;  Justice Soumen Sen of Calcutta High Court;  Justice Gautam S. Patel of  Bombay High Court ; Justice M. Sundar of Madras High Court  and Justice Sanjeev Narula of the Delhi High Court.

The Moderator of the Session, Justice Prathiba M. Singh of the Delhi High Court, called this a historic moment as the Judges of the five High Courts having the Intellectual Property Jurisdiction had never before come together for such a Panel Discussion.

Justice Singh started this discussion by putting forth the question pertaining to the manner in which the IPR cases were dealt with in the High Courts prior to abolition of IPAB and the kind of litigation that is generally seen.

Congratulating the Delhi High Court on the new beginning of the IP Division, Justice Gokani from Gujarat High Court mentioned that this High Court does not have the Original Jurisdiction and it largely has, Appellate and Supervisory Jurisdiction. She also stated that the High Court as of now doesn’t have that much of pendency but in District Judiciary there has been a pendency of around 4000 cases. She also said that the Gujarat High Court would look into the lines of an IP Division and there are a couple of suggestions on the way which the Court would pay heed to.

Justice Sen from Calcutta High Court said that the High Court has the legacy of having IP litigation over a long time now. The Court also has the Original and Appellate Jurisdiction. He also stated that there are around 600 transferred petitions from the IPAB. Clarifying that the IP Division Rules seem to be consistent with established practice around the world, he said that it is high time that the same is adapted. He also congratulated Justice Singh on the well drafted Rules.

“There should not be any competition amongst High Courts, We’re in this together.”

Justice Patel from the Bombay High Court said that he came in the line of IP with curiosity. Observing that in IP matters there shouldn’t be any competition between High Courts, he said “We’re in this together. We need to have individual IP Divisions to deal with individual IP rights”. He said that IP controls entire businesses, small to large and also mentioned that he is grateful that the Delhi High Court has established such a division and this is a template which will also keep on getting modified in future.

As far as status of the IP litigation is concerned, he stated that that most of their work tends to be into Trademark, Copyright and Design with very little work in the High Court in Patents.

Justice Sudar from the Madras High Court firstly thanked Justice Singh for inviting him to the Seminar and then stated that the Madras High Court has the original side in such matters. He also cited important trademark judgment of  the Madras High Court  inM.C. Jayasingh v. Mishra Dhatu Nigam Limited (midhani) Represented By Its Managing Director, Kanchanbagh And Others, 2014 SCC Online Mad 163. According to him, efforts are being made to collaborate with the Delhi High Court and make IP Litigation as homogeneous as possible.

Justice Narula said that the Delhi High Court has been lucky to have all kinds of litigation related to IPR and citing certain reports and data he stated that patent cases have been increasing gradually every year and also the number of pending cases with IPAB.So, creating IP Division was the need of the hour, he added.

Referring to the newly introduced Rules, he said that the approach that has been taken into consideration is the fact that these kind of matters have short issues that can be disposed of easily rather than going for a traditional civil procedure approach.

In case of one matter giving rise to multiple litigations, he said that such matters can be consolidated together in the IP Division. He also clarified that jurisdiction of the IP Division would also deal with Writ Petitions and Appeals, which were traditionally being handled by different Courts and they are now are brought under one umbrella which would lead to speedy and effective resolution of disputes.

Justice Singh then put forth the question if Judges in the IP Division need technical qualifications.

Justice Sonia said that there is no need to have technical Judges specifically, but the Judges do need to have good technical assistance.There could be research persons and Judges need to have the enthusiasm to learn. Justice Sen also reaffirmed her opinion that Judges don’t need to be technically qualified  but good technical assistance is needed along with enthusiasm to learn. The Judge can get the idea from the assistance that he receives and then apply his own intellect to the facts of that case, added Justice Sen.

IP Litigation is not Luxury Litigation, it is Survival Litigation.”

Justice Patel said that Judges should not be marginalized by being called as “only IP Judges” as a judge should be able to move in and out of IP assignment as and when required. He said, “IP Litigation is not Luxury Litigation.It is Survival Litigation.”

Justice Patel was asked if there can be a harmonized and uniform kind of system across High Courts and how can the same be plotted.

To this, he replied that there should be a common procedural norm towards these kinds of litigation. He went on to state that it is not always about big brands. IP litigation also includes claims of small business owners like agarbatti or a bottle manufacturer. He stated that for these small scale manufacturers and trademark competitors, it is a matter of survival. It is a David vs. Goliath situation and there has to be a uniform policy for easy understanding.

Justice Singh then brought forth the next question as to how time consumption of Courts in IPR matters can be dealt with and a move be made to achieve a final decision fast.

“Rate of disposal is two to two and a half times the rate of institution”

Justice Sundar talked about Summary Judgment, Order 15 A of amended CPC as amended by the Commercial Courts Act,2015  and the option of Redaction.He added that the rate of disposal is two-two and a half times the rate of institution.

Justice Singh then referred to a case of Music Royalties which was handled by Justice Narula and the creative ways adopted and steps he took to deal with such litigation.

Justice Narula explained the matter by stating that this case was regarding the royalties of the broadcasting stations that have to be renewed every year. The IPAB has powers to fix license fee for royalties for music on FM Radio Stations.Herein, the IPAB had already taken a view which was pending before the High Court and all the broadcasting stations had approached the Court for fixation of the interim royalty rates till the time a final view was taken.

Justice Narula stated that in order to streamline arguments in such cases it was important to appoint one advocate as Nodal counsel for the entire team who would assimilate all the data and then present it to the Court. In this case, a public notice had to be issued in the newspaper inviting comments from the general public which then had to be circulated further among the councils. So, the innovative manner adopted in this case was the creation of an email id which was also printed in the newspaper and all the replies were received in that email.

Justice Pratibha complimented Justice Narula’s creative way of handling this case and also mentioned that it was a first of its kind method which was adopted.

Another question put forth to the Panel was the need for a culture of Damages.

On the question of how to inculcate the Culture of Damages, Justice Patel said that claims are not only for past loss but also for a potential loss of future which also includes damage to a process of creativity. 

“An infringer must know that there is very real money consequence to infringement”

Damage is an estimation made by the Court and it is to be given to discourage other persons from trying to infringe intellectual property. An infringer must know that there is very real money consequence to infringement. This money consequence can happen in two ways-one being imposition of very heavy damage and second being punitive and exemplary costs for mounting a frivolous defence, added Justice Patel.

Referring to the newly introduced IP Rules, Justice Narula stated that in the Rules there has been an inclusion of the provision of Rule 20 whereby while computing damages, the Court may take assistance from an Expert.

Justice Sonia also threw light on the aspect of calculation of lost profit and infringer’s profit.

Next point addressed by Justice Singh was the need of having a National Panel of Experts for all IP judges across the Country which could have experts both from India and Abroad providing scientific and technical assistance to the Judges in IP matters. 

Justice Sonia said that it is a very laudable idea and this is something which needs to be done.

Justice Sen said that it is a reservoir to draw across the country and it is absolutely essential as long as each Court can make suggestions and there can be a screening policy with regard to who can be empanelled and sponsored.

“People from the Patent office could also be seconded into the IP Division and their experience and assistance can help the IP Judges”

Justice Sen said that with scientific advancements, the complexities of the case also changes. He also gave the example of the Tokyo High Court wherein Judges are assisted by experts under a robust system. Another suggestion which emanated from this discussion was that people from the Patent office could also be seconded into the IP Division so with their experience they can help the IP judges.

Last question put across was regarding the impact of Public Interest in IPR Litigation.

Justice Narula elucidated upon the third party intervention that has been incorporated in the Rules because of the human rights and public interest angle. He said that the public interest element can never be ignored. He cited the example of compulsory licensing regime in the Patent act which is naturally recognised.

“Public interest pervades IP Law”

Justice Patel said Public interest pervades IP Law. He gave the example of patents pertaining to hybrid seeds in bio-technology where this facet of Public Interest can be seen. There must be a space to allow public interest intervention in the IP Division when required. He added that IP litigation involves the question of identity and survival. He believes that in the IP Division there should be a mandate for one Intra-Court Appeal in the interest of that litigant who has nowhere else to go and who can’t possibly afford to reach the Top Court.

Justice Sundar referred to the aspect of Public interest in the matters of Compulsory Licensing in patents and particularly, in biomedical products. He said that the very concept of the patent itself is to encourage this invention and by recognising this invention, the law is providing for monopoly which in itself is public interest. Patent Law in itself is predicated on the underlying sublime philosophy of  Public Interest.

“Consumer’s Point of view to be taken into consideration”

Justice Singh concluded this discussion by stating that even in Trademark matters it is not the plaintiff and the defendant, but it is the consumer confusion which is the test in such matters. So, the person not in the Courtroom is the consumer and whether he or she would be confused adds the aspect of public interest into Trademark jurisprudence. Therefore, the Consumer’s point of view is important to be taken into consideration by the Court, she added.

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