How does your previous role, as a judge at the Madras High Court, compare to the more specialist IPAB?
The Madras High Court is the highest court in the state of Tamil Nadu, and the judges handle a very wide variety of cases, like civil, tax, criminal, and federal matters. The power of the High Court judges under our Constitution is really extensive.
The jurisdiction I have with the IPAB is not like that, but it is still very important. This is where we will be creating the body of case law that will be the basis for the future of intellectual property. Some of the cases we have decided in trade marks and patents, such as the Financial Times case, the Ayur case, the Yahoo! case and the Puritek case may have a big impact on IP practice in India.
What has your experience of being IPAB chairperson been so far?
Some parts have been good, other parts not so good. I really enjoy the role as judge, but one of the biggest challenges is improving the infrastructure of the IPAB. We are based in Chennai, and right now we travel extensively on a circuit. We go to Delhi, Calcutta, Mumbai and Ahmadabad to hear cases. We travel in teams of two, either me or the vice chair and one of the technical members of the IPAB that specialises in patent or trade mark matters. The staff too comes along with the records.
I would like the IPAB to have an easier way to handle this. Perhaps in the future we will have video courts and there will be no need for this travelling or have people actually staffed in the circuit cities so they don't have to travel from Chennai. One possible structure might be to have the principal seat at Chennai and benches elsewhere.
These are not issues that I can decide. For the IPAB , the nodal Ministry is the Ministry of Commerce and Industry, though a recent Supreme Court judgment held that the Law and Justice Ministry should be in charge of all the tribunals, including the IPAB. That change hasn't been made yet.
What are the biggest issues for IP in India?
I think the patent cases, especially the pharmaceutical ones, are the most important. They are pending before the Supreme Court, the Delhi High Court and the IPAB. I think these, and the issue of compulsory licences raised in the Bayer case, are closely watched and will have an important impact on patent law in India.
In the next decade or so, geographical indications will be another interesting area. Geographical indications (GIs) often attach to traditional Indian crafts, foods and clothing. I am dealing with the first GI case in India, but I think there will be more. This first case that came up before the IPAB involved the fashioning of a particular kind of ring; the craftsmen in the villagers claim this craft is traditionally practised in a village in Kerala and the rings carry the village name.
Many of the craftsmen and artisans whose products that would carry GIs are not aware of developments in the law. I think we must educate them on how their rights should be protected. Otherwise the spirit underlying the law will be lost.
I really feel that if local craftsmen have fashioned and created this GI product for centuries, there must be some safeguard in the law and some way to let them know that these cases are being heard. Also, a lack of knowledge about the law and lack of financial resources often impede access to the tribunal.
In the case in Kerala, one thing we have done to get more craftsmen involved is to require the party before us to publish notices in the local language. These notices ran in a number of local publications in Kerala, and since then, we have received about eight letters from individuals claiming to be artisans practising this craft. We also have another intervener who claims to be a society representing these craftsmen.
This is a nascent law, so it will continue to develop.
As the chairperson, what are your goals for the IPAB?
After I took over, I decided to design a logo for the IPAB. The resulting logo has a legend that says "balancing IP protection", and this is the overall goal of the IPAB: to balance the interests of rights holders and the larger society.
To achieve this goal, I would like to strengthen the IPAB so that it can deal with a vibrant body of cases that will help set the course for future development. I want this to be the model tribunal for my country. India has a number of tribunals, but I don't think any of the other tribunals draw the same level of international interest as this or have the same trans-border impact.
These tribunals have to work as well as a court, and they have to be just as efficient. If we can't do this, then the litigants lose and the cause of justice suffers. It should be fast, it should be just and it should infuse confidence.
The IPAB needs the tools and resources to do its work efficiently and effectively. One issue that I have worked on and have spoken about in public is the lack of resources, including space, for the IPAB. There is a public interest case filed in the Madras High Court about this issue, and hopefully we can get this resolved soon.
Efficiency seems to be a high priority. Do you have any advice for litigants on making their cases move faster?
I have one piece of advice for the lawyers before me: if they wear their civil litigation cap and come here, their case might take a long time. They need to approach this in a slightly different way, and put on the cap of an IP practitioner.
One example of the difference is in filing evidence. When filing in a civil court, parties will examine the witnesses and have cross examinations. Often various motions are filed, such as over whether a document was properly submitted for evidence.
At the IPAB, we do most of our work based on affidavits rather than witness testimony. The lawyers should keep this in mind, and try to keep a tight schedule for filing of all documents and affidavits. If the two sides can work together and keep a tight schedule, then we can move on to the hearing.
If more parties follow these schedules, then the time it takes to decide cases will drop.
There has already been some improvement and lawyers are beginning to understand what it takes to lower case pendency. Lawyers used to file a lot of petitions for time extensions for things such as responses. Since I joined the IPAB, they have been more careful about requesting extensions because they know that I am not as willing to grant them.
I understand that the lawyers often have clients based in other parts of the world, so there can sometimes be difficulties in contacting them and getting the necessary information. Still, the more they follow the timelines, the faster cases will be decided.
I keep telling the lawyers that they are important stakeholders in the system, so they need to do their part to ensure that we get on with the cases as efficiently and quickly as possible. Both judicial authorities and lawyers have an important role to play.
What misconceptions do people have about intellectual property in India?
Until recently, I think many people thought India was not serious about IP. That misconception is changing, and not only because of the IPAB; I think the Controller General's office is becoming stronger. Soon the misconception will go and the world will understand that India is serious about protecting IP rights.
What will you do after the IPAB?
I'm not sure. I will step down from the IPAB next year, since the mandatory age of retirement is 65, but I don't really know what the future holds. I like to write and want to continue writing. I write about social issues. Recently, I wrote a piece on the death penalty, and another on the rights of transgenders. My writing is aimed at a layperson, but my approach is very much rooted in the law.