Idea That Intellectual Property Is An Elitist Field Of Law Is Completely Misplaced : Justice Prathiba M Singh

Hon'ble Chief Justice of India, Justice N.V. Ramana, the Hon'ble Finance Minister Ms. Nirmala Sitharaman, our Chief Justice, Justice D.N. Patel, Chief Justice of the various High Courts, colleague judges across the country including the Delhi High Court, members of the Intellectual Property fraternity, stakeholders, ladies and gentlemen.

We assemble here today to mark the beginning of our momentous journey in the field of Intellectual Property adjudication. Never before have so many distinguished dignitaries in the legal system - led by none other than Chief Justice of India - come together to express the resolve for an efficient and modern Intellectual Property adjudication framework adopting the global best practices, harmonized with our own laws.

Intellectual Property litigation in India has come a full circle from the High Courts to the IPAB and back.

While the substantive IPR laws during the colonial era resembled which were prevalent in England, post-independence, India created its own statutes. The post WTO regime of the 1990s brought about a unity in the substantive law globally and India is a part of the said system. However, the Intellectual Property jurisprudence in India has evolved into a rich jurisprudence based on its social and cultural ethos. India judges have decided the most complex disputes, laying down principles which are matching with the global jurisprudence in this area.

When the law in India was changed post the TRIPS agreement, the IPAB was established as an expert tribunal for adjudicating IPR disputes except suits which continued to be filed before District Courts and High Courts. The IPAB functioned for approximately 17 years from 2003 till 2021, however, the IPAB which was headquartered in Chennai holding circuit benches across the country faced various procedural and substantive problems. The various Judges who held positions of Chairpersons in the IPAB faced daunting challenges and despite the same, delivered justice to the best extent possible. The conception of the IPAB was not off the mark but the same problems which generally affect tribunals i.e., did not escape the IPAB. Filling up of the positions in the IPAB also proved to be a challenge. The Tribunals Reforms Act, 2021 was enacted last year leading to the abolishing of the IPAB.

The summer of 2021, when the second wave of the pandemic hit all of us, also saw the movement of files from IPAB to the Delhi High Court. Our Court seized this opportunity and the Hon'ble Chief Justice, Justice D.N. Patel took the lead to constitute a Committee as to the manner in which these cases have to be dealt with. The Committee recommended the constituting of the Intellectual Property Division of the Delhi High Court. The said recommendation was made by the Committee keeping in mind the trend in various jurisdictions of the world to have specialized Intellectual Property Courts or specified Benches dealing exclusively with Intellectual Property matters. The examples of the patent court in U.K., the Intellectual Property Division, High Court in Japan, Central Intellectual Property and International Trade Court in Thailand were borne in mind in making this recommendation.

The path-breaking decision to notify the said Division took place in July, 2021 immediately after which the Intellectual Property Division started functioning.

Once the Intellectual Property Division was set up, the Committee embarked on the task of drafting the rules to govern the Intellectual Property Division, simultaneously the rules to govern patent suits were already a work in progress. Both these Committees worked together to publish the Intellectual Property Rules. The said Rules which are contained in the brochure circulated today are an amalgam of the work of both Committees as also the various individuals comments received from colleague Judges of the Delhi High Court and the in-depth analysis and scrutiny with the stakeholders from the IP community communicated to the two Committees. I would specifically like to acknowledge the inputs received from the two lawyers' associations namely the AIPPI which is an international organization of the IP lawyers and the IPAA which is the organization of IP lawyers in the Delhi High Court. I would also like to acknowledge the comments received from the International Trademark Association, the largest association of IP lawyers in the world, Intellectual Property Owners' Association based in Washington D.C, the Japanese Intellectual Property Group and our own FICCI. The comments received showed the commitment of the IP fraternity in the marking of these rules, their inputs are immensely valued by the Court.

Some of the features of the IP Division rules are :

• firstly, the definition of Intellectual Property itself includes all the traditional forms of IPR and also those arising under common law.

• All IPR matters received in the Delhi High Court including suits, appeals from the IP offices, original petitions, writs, revision petitions, appeals from commercial courts to be exclusively adjudicated by the IP Division which would henceforth consists of two judges.
• The IP Division would be free to use all forms of technology including remote recording of evidence, videography and transcription arrangements.
• For the recording of evidence, procedure such as hot tubbing has already recognized in the Delhi High Court Original Side Rules are provided for. In hot-tubbing, experts on both sides are pitted against each other and what could be called as virtual wrestling match and judges would be free to ask questions on the issues relating to their field of experts. This would enable the Judge to analyse the relative merits of each party and not unnecessarily spend time on unilateral evidence coming from one side.
• Preservation of evidence under Rule 18 wherein once a notice was issued to the party about the commencement of litigation such party would be required to preserve the evidence, documentary or electronic, for example, relating to manufacturing processors, use of patented technology in the product, licence arrangement, etc. This notice is called the Litigation Hold Notice which requires preservation of evidence for a period of one year.
• Rule 19 provides for confidentiality clubs which would be constituted by the Judge to ensure that the information disclosed to the members of this club are confidential and not revealed to any of the parties.
• The biggest development globally in the IP cases is the issue of damages. Rule 20 provides for some of the factors to be borne in mind while granting damages in the IPR cases.
• IPR cases could raise issues affecting the larger society. Third party intervention has been made permissible under Rule 25.
• In the Delhi High Court, we have noticed that trials relating to the same patent and same trademark are carrying on/ continuing in multiple cases. In order to save time, consolidation of disputes relating to the same IPR has been provided for under Rule 26.
• One of the biggest problems which Judges in IPR matters face is the lack of technical experts. In order to solve this issue, a two-pronged approach has been adopted in the Rules. One is that the IP Division shall have a pool of law researchers who would be technically qualified, for example, engineers, chemists, micro biologists, experts in bio-technology, etc., who would assist Judges just like regular law researchers. The second would be a panel of experts and advisors which would consist of experts in various fields from both India and abroad whose services could be availed of by the IP Division. Such a panel of experts could be shared between High Courts across the country and can be updated from time to time.
• The IPR rules empower the courts to provide for reasonable accommodations. They also require filing to be done with a portable document format with specific OCR capabilities. This is meant to assist those practitioners and litigants who have special abilities or physical disabilities etc., as recognized under the Rights of Persons with Disabilities Act.
• Mediation and early neutral evaluation by persons who are familiar with the nature and technology is also contemplated under Rule 37.
• The data in the Delhi High Court shows substantial increase in patent disputes. This is clear from a perusal of data in the article which is printed in the brochure today which shows that between 2000-04 only 3 patent cases were filed but from 2015 onwards, the total number of fresh patent cases filed is approximately 300 i.e., in a span of 7 years which includes the pandemic years. Thus, the patent rules would also provide guidance to litigants and practitioners as to the manner in which patent suits sought to be drafted and the direction in which pleadings are proceeded.

Vision of the IPD

The intellectual property regime in a country is one of the benchmarks of its global standing. The efficiency of the IP regime is also a measuring standard for determining where a country stands in terms of its development indices. IP related issues form an important area of discussion in almost all diplomatic negotiations between countries including free trade agreements and multilateral negotiations. The economic growth of a country depends on the recognition accorded to innovation and creativity.

As India is a knowledge-economy, one of the measures for the preservation and recognition of knowledge is, the protection and enforcement of IP rights. Recent trends point towards increased all-round filings in trademarks, patents, etc. but this is no reason for complacency. India should strive to improve its systems and push the standards while at the same time retaining its social and cultural ethos. India is the largest generator of creative works owing to its rich diversity in languages and cultural heritage. Copyrighted works from India are disseminated and published across the world, but the royalties that India receives is minuscule compared to the quantum of creative works.

An IP friendly adjudication regime would encourage local businesses as also recognise foreign IP owners. The idea that intellectual property is an elitist field of law is completely misplaced. More than 80% of trademarks which are registered in our country belong to domestic businesses. Almost 40% of patents which are applied for belong to domestic inventors. This figure was at 20% just about five years ago. India ought to aspire to increase this percentage over the years in patent filings. Recent trends of innovation in India are pointing towards the right direction.

This is the time to recalibrate IP adjudication. Apart from providing efficient systems for those litigants who knock on the doors of our courts, the base of IP litigants who seek protection, enforcement and adjudication ought to be raised. Individuals and small inventors ought to be provided a system which welcomes them. The costs for such adjudication ought not to be prohibitive. The manner in which this can be achieved is by creating an IP adjudication system which is uniform across the country beginning with the Commercial Courts and up till the Intellectual Property Division in the High Courts. Accessibility ought to be improved without compromising on the quality of adjudication. This can be achieved through interlinking IP Courts and the Commercial Courts with the Intellectual Property Division in various High Courts and by the sharing of best practices and knowledge.

The present Seminar is one step towards that direction. The interlinking of IP Courts at the Commercial Court level and the Intellectual Property Divisions in the High Court would provide a platform where adjudication of IPR cases is quick, transparent and of high quality. Assistance required for the Commercial Courts and Intellectual Property Divisions across the country should be readily available through this network in the form of procedural assistance, access to experts from various areas of law, economics, sciences, etc. and the continuous engagement on such a platform.

India's legal position both statutorily and by judge-made law may have been received with reluctance in some areas such as Section 3(d), Patents Act, 1970. However, as time has progressed including during the present pandemic, India's position has been affirmed as one enjoying a unique status. The best way to describe the country's position qua IP enforcement is with the word "balance". While recognising the rights of IP owners, the larger purpose of IP has not been forgotten by India i.e., for betterment of society. The role of IP and persons who practice the same is very crucial in ensuring this balance.

The IP jurisprudence in India, thus far, is extremely rich and thought provoking. In respect of India's IP jurisprudence, the need of the hour is for greater dissemination of the decisions and the data relating to IP cases. Until now there is hardly any empirical analysis of the trends in IP decisions emerging from India. Only stray articles are written on a few decisions. A national repository of IPR decisions could be created for ready access and dissemination.

The creation of the Intellectual Property Division will hopefully enable this dissemination as it ought to result in data analysis and generation of annual reports published from India showcasing the contribution that Indian Courts are making in the field of IP.

As informed by our CJ more than 11000 IPR cases have been filed in DHC from the year 2000. 90% of these cases are already disposed of. With the transfer of the cases from the IPAB the approximate number of cases which will now be pending is between 4000-5000 cases, justifying the creation of the IP Division.

India's IP law is extremely modern and TRIPS compliant, but there is room for further thinking and reform. As innovation grows in India, some substantive provisions may be required to be relooked which would happen over time. However, the creation of the Intellectual Property Division is a big step in procedural reform and the manner in which IPR cases would be handled going forward. As technology progresses and newer forms of innovations in the area of artificial intelligence, blockchain technologies, internet of things, protection of algorithms are being discussed and debated, if the Court system does not adapt, it would be like a person walking with both shoes tied together.

India's tryst with intellectual property has moved from the scriptural ethos of sharing, to a country which introduced IP with reluctance and then to a country which almost felt coerced into signing the TRIPS agreement. However, the story of the 1990s is over. In the 21^st century, India is an IP friendly country which is proud of its innovation and wishes to build on the strength of the same. For it to move forward in this direction, the IP adjudication system has to keep pace.

In order for the growth in innovation to be holistic and all pervading, the Court system, also has to become innovation friendly. The Intellectual Property Division of the Delhi High Court is one defining step towards the same and there are miles to go......before we sleep.