Almost a year after the Delhi High Court’s bizarre order in the Mylan case, the Indian Drug Manufacturer’s Association (IDMA), represented by Advocate Guruswamy Natraj has sued the Central Government over the missing technical member for patent matters on the Intellectual Property Appellate Board (IPAB). The case number is W.P. 4430 of 2020. This lawsuit appears to be part of a ritual undertaken before the Delhi High Court every few years where the government is dragged to court due to the lack of appointments to the IPAB.
In case you do not remember the bizarre order of the Delhi High Court in the Mylan case last year, please refer to our post of that issue over here.
To briefly summarise the main issue in the Mylan case: The law (Section 84 of the Trade Marks Act) requires that the IPAB has a minimum quorum of 2 members to hear any matter before it. Of these two members, one is required to be a Judicial Member with an understanding of the law while the other is required to be a Technical Member with a sector specific expertise. As a result the qualification requirement for Technical Member – Patents, is very different from Technical Member – Trademarks or Plant Varieties.
Any case before the IPAB dealing with matters under the Patents Act, is statutorily required to have a Technical Member-patents sitting on the bench along with the Judicial Member. However for reasons unknown, the Central Government has not appointed a Technical Member – Patents to the IPAB since the retirement of Mr. DPS Parmar from the IPAB in 2016. Since the IPAB could not hear patent matters without a Technical Member – Patents, litigants began to approach the High Courts under their writ jurisdiction. In one such case filed by Mylan before the Delhi High Court, Justice Midha passed a judgment stating that the Technical Member for Plant Varieties could substitute the Technical Member (Patents) on the IPAB to hear patent related matters along with the judicial member. This judgment goes completely against the statutory scheme of the law because the Technical Member for Plant Varieties can only hear cases under the Plant Varieties Act which is an entirely different law from the Patents Act. The qualification requirement for the Technical Member- Plant Varieties is entirely different from Technical Member – Patents.
After the aforementioned order was passed, we presumed that someone from the IP fraternity would challenge the blatantly illegality of having a Plant Varieties – Technical Member hearing patent matters. Surprisingly nobody challenged the order and instead we have been seeing the IPAB pass some rather strange orders in the patent context. Swaraj and Praharsh have covered one such order over here. It has taken a year for someone to finally re-litigate the Mylan judgment. The fact that the IDMA (which represents mid and small pharmaceutical companies) has taken up this litigation is a sign that the Indian pharmaceutical industry is deeply dissatisfied with the functioning of the IPAB.
I have it on good authority, that at the hearing this morning before the Delhi High Court, the counsel for the Central Government an oral submission that a Technical Member (Patents) was appointed last night. A written confirmation from the government is awaited.