INTELLECTUAL PROPERTY APPELLATE BOARD

This Article is written by Anshika Srivastava of 4^th Semester of NMIMS School of Law, Intern under Legal Vidhiya

INTRODUCTION

Recently, these rights were protected. Trademarks, designs, and patents are all examples of industrial property. Unfair competition is intended to be eliminated by the Paris Convention, which regulates agreements for the protection of industrial property. Industrial property is intellectual property since it contains copyrights, geographic markers, designs for layouts, and confidential information.

Intellectual property rights in India

Intellectual property restrictions limit how creatively people may use their ideas. These privileges are recent. Trademarks, designs, and patents are examples of industrial property. Eliminating unfair competition is the aim of the Paris Convention. When combined with copyrights, geographical markings, design blueprints, and sensitive information, industrial property is transformed into intellectual property.

Intellectual property rights have the authority to enforce international law thanks to the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the WTO. IP rights are described under TRIPS as: First, copyrights

Copyright is protected by performers, phonogram producers, and broadcasting companies. copyright for painters, the copyright in their work that is protected by the rights of performers, phonogram manufacturers, and broadcasting companies. the copyright in works owned by painters, musicians, sculptors, photographers, and authors. the legal status of software, whether it is in source code or object code.

1. Dealers’ ownership of trademarks.
2. The manufacturer’s and producer’s right to the location of the production and sale of such items.
3. Designers deserve praise for their distinctive, eye-catching creations.
4. The right to a patent for an invention belongs to the inventor. Farmers and plant breeders also have this right.
5. biological diversity is entitled.
6. Computer engineers’ rights to develop integrated circuit layouts.
7. The businessperson’s right to protect their exclusive information on technology and management.

In situations of suspected Policy breaches by students, employees, or administrators, the Appellate Board hears appeals.

BACKGROUND

In 2003, IPAB was established.

It concentrated on copyright, patents, trademarks, and geographic indicators.

Since the Novartis patent case in 2007, the IPAB is authorized by the Patents Act to hear and evaluate Patent Controller appeals. The Patents Act has faced challenges from the Indian High Court, according to IPAB.

By virtue of the Tribunal Reforms (Rationalization and Condition Service) Ordinance 2021, IPAB is eliminated.

The model patent legislation that complies with TRIPS comes from India. For instance, evergreening restrictions and necessary permissions.

India was prohibited from developing powerful appeals process for patent law due to the IPAB’s failure.

What are the powers of Intellectual Appellate board?

Instances where an application is rejected because it does not satisfy the Act’s requirements, divisional application orders, application dating orders, anticipation decisions, instances of potential infringement, orders regarding applicant substitution, cancellation of patents in the public interest, and clerical errors can all be appealed to the IPAB.

However, decisions made by the Indian Central Government regarding inventions related to defence purposes, such as orders of secrecy regarding such inventions, revocation of a patent if it conflicts with the public interest, or decisions related to atomic energy, are not subject to appeal to the IPAB. Also, not susceptible to review is the Controller’s order extending the deadline under any provision of the Patent Act of 1970.

Organization of an IPAB Bench: Each IPAB Bench consists of a Judicial Member and a Technical Member. The prerequisites for appointment as a technical member of the IPAB are specified in both the Trade Marks Act and the Patents Act.

What is the composition of Appellate Board?

The Trademarks Act grants the Appellate Board a chairman, vice-chairman, technical, and judicial members. Central government decides. Benches use it. Boards tell benches to partition subjects. One judge/technician. Central Government staff can help the board.

CHAIRMAN

Two-year judges’ Vice-chairmen preside. Five years or 65. He decides benchability. No bench is his. He can swap members across benches. Chairpersons hear member grievances. Chairman’s options. He picks. Others decide. First case hearer and members addressed. Chairman oversees Central government-appointed staff.

Chairman informs and hears bench transfer requests. Chairman can swap benches.

This law makes the vice-chairman chairman. If the vice-chairman is missing, the senior member leads. till the chairman returns.

VICE-CHAIRMAN

Vice-chairmen must be two-year technical or judicial or five-year Grade I Indian legal service members. Five years or 65. He succeeds if the chairman dies or resigns.

Other members

Judges, specialists. The Indian legal service requires three years in a Grade I post or 10 years in a civil judicial office for judicial members.

Before appointing the chairman, vice-chairman, judicial, and technical members, the president contacts the Indian top justice. Terms, pensions, allowances, and salaries are set. Vice-chairman, technical, and judicial government employees retired.

What is the process of removal or resignation of the members?

By giving notice to the President, members of the appellate board or bench may resign. Three months after sending the notice, the member is deemed to have resigned from their position. The member may quit the office before the expiration of the designated tenure, with the permission of the President or if a fresh candidate is chosen to occupy the seat. None of them may be dismissed before to the expiration of their mandates unless the President gives a directive based on conduct that has been found to be improper or incapacity that has been determined by a Supreme Court judge. Before that, the member must be made aware of the charges against him and given an opportunity to respond fairly. 

What is the role of Intellectual Property Appellate Board?

The Intellectual Property Appellate Board was formed on September 5, 2003, to hear and consider appeals against the registrar’s decisions under the Indian Geographical Indication of Goods Act, 1999, and the Indian Trademarks Act, 1999.

Correct applications and quick appeals are given priority by IPAB. The IPAB also has circuit benches in Mumbai, Delhi, Kolkata, and Ahmedabad in addition to its headquarters in Chennai.

In its Statement of Objects and Reasons, the Trademarks Act of 1999 (47 of 1999) recommended the creation of an Appellate Board to promptly consider High Court appeals and rectification applications. The IPAB was established by the Central Government on September 15, 2003, according to the Official Gazette.

Geographical indicators relating to commodities were recognized and given protection by the 1999 Geographical Indicators of Commodities (Registration and Protection) Act. The IPAB appeals process under the Trademarks Act was exclusive to the Act.

Our patent system became TRIPS-compliant in 2002 thanks to the Patents (Amendment) Act. This Act gave the IPAB the power to consider appeals of controller orders or judgments, cases involving the cancellation of patents (except than those involving counterclaims for patent infringement), and cases involving the correction of registrations. S. 117-G of this Act assigned the IPAB jurisdiction over all High Court proceedings.

Its operations are governed by the 2003 Intellectual Property Appellate Board (Procedure) Rules. The Board’s judgment is upheld.

Decisions made by the Controller of Patents are subject to review by the IPAB. Legally speaking, the IPAB is unable to decide infringement disputes. IPAB must assume control of High Court cases relating to Controller decisions or orders under IPA s. 117G.

What is the jurisdiction related to Intellectual Appellant Board?

The IPAB must receive appeals from the Controller’s decision within three months of the date of the judgment, order, or directive, or within an extended period granted by the IPAB, together with the relevant fees.

A Condonation of Delay (COD) petition must be submitted in order to file the appeal with an extension. A COD must be filed with a proper explanation for the delay and the necessary governmental fees.

The IPAB accepts appeals of the following decisions issued by the Controller or the Central Government of India:

• Any choices relating inventors’ names
• Any directions given to co-patent owners or decisions pertaining to the Patent of Addition
• Any orders pertaining to divisional applications
• any instructions relating to the date of the application
• Application denied because it didn’t follow any Act requirements
• Any decisions that involve the possibility of judgements, rulings, or instances of potential infringement.
• in relation to fixing a clerical error.
• Any decisions regarding the mandatory licensing of a patent.
• all rulings addressing the cancellation of a patent for non-use.
• various options, even the replacement of programs.
• Any decision concerning the cancellation or revision of a patent.
• Any decisions relating to application and specification changes.
• Any decisions addressing the restoration of patents that have expired.
• Any options, even the revocation of patents.
• Regarding the public interest’s revocation of patents.
• Any patent assignment registration

Exclusive Jurisdiction: Except for counterclaims in infringement cases, the Appellate Board has exclusive jurisdiction over all appeals from any decisions or rulings rendered by the Controller as well as any procedures involving the cancellation of patents and the correction of registrations. The IPAB has the power to reopen any matter where an appeal was previously filed. It is still legal for the High Courts to consider cases involving patent infringement.

The only body with the power to employ such powers and decide on the legal actions that result from an appeal against a Controller order or judgment is the IPAB.

The Indian High Court should rule on a counterclaim in an infringement action.

This page’s content aims to give readers a broad overview of the subject. You should seek professional counsel given your unique situation.

What are the sections 83,84,85,88,91,92,94 and 117A of Indian Patent Act 1970 talks about?

• Section 83 says that to exercise its jurisdiction, powers, and authority under this Act, the Central Government must form the Intellectual Property Appellate Board in the Official Gazette.
• Section 84 of the Indian Patent Act addresses the granting of Compulsory Licenses.
• Section 85 says that if a copyright does not work, the manager can decide to take it away.
• Section 88 says that the Controller can give out permits that must be given.
• Sections 91, 92, and 94: When the controller approves patent licensing, when the controller approves the registration of a patent after getting a notice from the central government, and when the controller decides to end the license over the objection of another person while taking that person’s interests into account.
• Section 117A (3) says that every IPAB appeal must include a copy of the decision, order, or direction being appealed, as well as any costs that may be needed.

Music Broadcast Ltd. v Tips Industries Ltd. & Ors. (2020)

Case facts 

Music Broadcast Ltd. filed ten applications under Section 31(D) of the Copyright Act, 1957 and Rule 31 of the Copyright Rules 2013 for statutory license and to set the rate of royalties to be paid to Copyright owners for radio broadcasts of sound recordings in 2020. The IPAB solicited applicant feedback on September 22, 2020.

IPRS submitted a notice application on September 17. The IPRS assumed radio transmissions have two royalty repercussions. IPRS exploitation and music industry royalties are the two. Sony Music India, TIPs Industries Ltd., and other music companies allegedly surrendered their rights to IPRS through deeds.

The IPRS also suggested remuneration for lyrics, composition, and radio sound recording. Reapplying September 23.

Copyright board license expiration applications were submitted. The applicant worried about the ramifications if a status quo order was not secured by September 30, 2020, the license expiry date.

Issue

The issue was

Should sound recordings have different royalties?

When the statutory license expires, will music businesses force applicants to sign?

Judgment

IPAB chairman Justice Manmohan Singh, N Surya Senthki, and S P Chock lingam presided. IPRS’s assignee—lyricists, music composers, and publishers—can claim revenue separately, the Bench ruled. 2012 Copyrights Act, 1957 modification affected verdict. The ruling required radio broadcasters to pay copyright owners of literary and musical works under sound recordings a separate fee from 2021.

After the license expires, radio broadcasters’ arrangements with music firms would remain unaltered, the Court said. The IPAB also upheld the 8 August 2010 judgement on radio broadcast royalties.

What are the reasons for the failure of Intellectual Property Appellant Board?

• First, the IPAB was unable to perform its adjudicative powers due to administrative issues. There were several issues that need resolving in court. Vacancies before the High Courts in Delhi and Chennai, for example, have been sought to be filled in connection with a case that questions the legitimacy of the IPAB.
• There are also applications to the Supreme Court for an extension of the chairperson’s term.
• The second issue is a lack of employees. For instance, it ran without a chairperson for more than two years. Additionally, there was a further delay in the technical member’s patent nomination.
• The IPAB lacks institutional and judicial independence, third. This issue has been brought up in public by former chairmen.
• The fourth is a lack of power. For instance, without a dependable backup, the leading authority on innovation and technology protection must continue to function during power outages.
• The fifth is inefficiency. 20 patent disputes, for instance, were settled per year. Furthermore, roughly 70% of the filed patent litigation were at one time either pending or inactive.
• Finally, IPAB’s demise was influenced by the government’s disregard for it. For instance, rather than a parliamentary act, an ordinance was utilized to pass the bulk of significant modifications to the Patents Act since 1970.
• Unjustified patent awards made by the Patent Office may be rectified through an appellate process if they were made accidentally or carelessly. An effective appeals mechanism for patent law is crucial for the innovation ecosystem.

What is the recent amendment to Intellectual Property Appellate Board?

Under the Tribunal Reforms Act, 2021, India’s Intellectual Property Appellate Board (IPAB) was recently abolished and its responsibilities were given to the country’s Commercial Courts and High Courts. Therefore, the Delhi High Court released a public notice on February 24, 2022, that included the division’s finished rules of procedure.

CONCLUSION

In India, a body called the Intellectual Property Appellate Board (IPAB) was created to handle disputes involving intellectual property rights. This is the overarching conclusion I have reached after conducting my investigation.

Patents, trademarks, geographical indications, and copyrights are only a few of the forms of intellectual property rights that fall within the purview of the Intellectual Property and Appellate Board (IPAB). The Controller of Patents, the Registrar of Geographical Indications, the Registrar of Trademarks, among other authorities, had the power to hear appeals of rulings.

Over the course of its existence, the Indian Patent Appeal Board (IPAB) has rendered several decisions and opinions relating to various areas of Indian intellectual property law. These rulings covered a wide range of subjects, including the legal protection given to geographic markers, the viability of patents, trademark infringement, copyright infringement, and many more.

But it is important to remember that India no longer participates in the IPAB. Several tribunals, notably the Intellectual Property Appellate Board (IPAB), were abolished as a result of the Tribunals Reforms (Rationalization and Conditions of Service) Act, 2021, which the Indian government enacted in 2021. Since that time, a variety of other organizations, including high courts and commercial courts, have inherited the IPAB’s jurisdiction and duties.

REFERENCES

Shailen Bhatia & Vibhuti Sharma, Post Abolishment Of Intellectual Property Appellate Board; A Re-Look At Section 124 Of The Trade Marks Act, 1999,Live Law
https://www.livelaw.in/columns/trade-marks-act-intellectual-property-appellate-board-tribunal-reforms-act-2021-195663

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Oishiki Bansal, The judgment by the Intellectual Property Appellate Board (IPAB) in Music Broadcast Ltd. v. Tips Industries Ltd. & Ors., Ipleaders, https://blog.ipleaders.in/judgment-intellectual-property-appellate-board-ipab-music-broadcast-ltd-v-tips-industries-ltd-ors/

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Establishment and Composition of Appellate Board under the Indian Trademarks Act, LAW CIRCA, https://lawcirca.com/establishment-and-composition-of-appellate-board-under-the-indian-trademarks-act

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Jash Vaidya, Role of Intellectual Property Appellate Board (IPAB),jashvaidyawordpress, https://jashvaidya.wordpress.com/2015/11/28/role-of-intellectual-property-appellate-board-ipab/

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