DHC’s IPD Annual Report a Positive Step for Transparency – Here’s How It Could Go Further

To mark the occasion of World IP Day on 26^th April 2023, the Delhi High Court’s IP Division (IPD) released its annual report for 2022-23, detailing the progress made by it in the past 1 year. Released after a few months from the date of IPD’s 1^st anniversary i.e. 28^th February 2023, the report is full of interesting comments from the Judges of the IPD and the members of the IP Bar and has a dedicated chapter summarizing the key IP decisions passed by the court in the past year. But what particularly stands out here is the chapter titled “Snapshot of the Report of the IP Division” (the chapter) wherein details about the number of cases filed, disposed and appealed before the IPD has been presented. Information on the number of cases heard and disposed by an authority is seldom available, so it is very good to see this report, and hopefully, this will continue in the years to come. In contrast, for example, if we look at the Delhi High Court, the last updated annual report on its website is for the year 2010-12. The present post focuses on this part of the IPD report, emphasizing how the information there can be made clearer.

Edit: The IPD Annual Report has now been uploaded on Delhi High Courts website and is available here.

Working of the IPD in 2022-23

The chapter can be divided into two parts- first, a brief discussion on how the IPD came into being; And second, details of the work done so far.

Abolition of the IPAB, a Double Whammy?

After a brief mention of the challenges faced by the court during the pandemic, the report notes how IPAB’s abolition was a “Double Whammy.” Noting that IPAB had its fair share of problems, the report comments that with the “diligent leadership and sheer perseverance of the then Chairperson” IPAB had started seeing growth in the disposal of pending matters and appointment of technical members, but with the enactment of the Tribunals Reforms Act and subsequent scrapping of the IPAB, there was a general lack of clarity on the fate of pending and fresh matters. The one whammy here was for sure the ensuing uncertainty over who will adjudicate and how the adjudication will happen, on the pending and fresh matters right off the bat of the abolished institution. Fortunately, this seems to be getting sorted now. But, I am not sure what the second whammy is? Was it that finally the IPAB was disposing of the matters and appointing technical members before it was abolished by the Tribunal Reforms Act? If so, then will merely disposing of the pending matters suffice? What about the quality of the judgements? Given how clearly this is being discussed in the context of the Controller’s orders (rightfully), it is a bit surprising to see similar attention not being given to the quality of the IPAB orders that had been coming out. Since we have extensively discussed these questions on the blog over the course of a decade, I’ll move on to the next point and interested readers can go through the exhaustive list linked above.

Establishment of the IPD

 In the backdrop of the above whammies, the report mentions the establishment of a special committee, in the Delhi High Court, by the then Chief Justice D. N Patel, with Justice Prathiba M. Singh and Justice Sanjeev Narula as its members, to recommend solutions for dealing with the influx of the cases. One interesting thing that the report points out reads as follows :-

“A bigger challenge for the Registry of the Court was lack of complete records of the IPAB. It required the supervision and persistence of a number of Delhi High Court staff to review true copies of the files received from the IPAB to complete the case files. Man power was allocated for scanning as also thereafter for destruction of duplicate records. The IPAB website was also pulled down simultaneously. Thus, even the orders passed by the IPAB were not easily accessible. Cases were listed before the Joint Registrars for completion of records. The IP Bar cooperated with the Registry of this court in this process.”

The importance in accessing orders/ judgements of a judicial body has been emphasized even by the Supreme Court and while Swaraj has previously discussed how the sudden takedown of the IPAB website meant lawyers (and other interested stakeholders) had to rely on paid databases for what should be publicly available case law, it is really surprising to see that a High Court was a victim of this hasty move as well. Unfortunately, for a lot of interested and affected people, the luxury of help from an entire Bar with doyens of IP law was/ is not available. Therefore, it is only optimal that the entire repository of the IPAB orders sees the light of the day on a publicly accessible platform under a mandate and perhaps these cases can be added to the E-courts portal. Until then, here is our (although limited, but freely accessible) back up copy of the IPAB orders. (Swaraj’s post above discusses it here.)  

The report also highlights that the established Committee worked in close coordination with the Committee for Tribunal Reforms Act and with the members of the IP Bar. Simultaneously, after the recommendations of the committee were accepted by the full court, the IPD was established (initially with 2 judges which was later expanded to 3).

What Do the Numbers Say?

After giving a glimpse of the inside action, the report discusses data on cases heard, disposed and pending before the IPD. I have reproduced the numbers from the report below for a clear understanding of the official data, but there are some questions about these figures, which are raised after this part.

• Matters transferred from the IPAB to the DHC IPD: More than 2000 cases were received from the IPAB with approximately 600 cases disposed of, which is an impressive feat to achieve in just 1 year and surely if the pace is maintained then in perhaps the next year or so, the IPAB backlog (in Delhi) will be resolved.
  • Total no. of patent appeals was 414, out of which 187 have been disposed and 227 are pending;
  • Total no. of original petitions concerning patents were 59, out of which 40 have been disposed of and 19 are pending
  • Total no. of Trademark appeals was 274, out of which 109 have been disposed of and 165 appeals are pending.
  • More than 200 original Trademark application cases were disposed of.

Additionally the report states :-

• More than 1000 cases have been filed before the IPD.
• Commercial Suits: 628 fresh commercial suits with IP subject matter have been filed in last 1 year before the IPD; At page 49 of the report, it mentions that more than 600 commercial suits with IPR subject matter have been disposed of by the IPD. However, later at page 51, the report says that more than 500 commercial suits have been disposed of. Are the latter different from the commercial suits with IPR as subject matter? The report does not clarify so.
• Other Categories: More than 500 IPR matters relating to other categories have been instituted before the IPD.
• Disposals: 750+ cases involving IP disputes disposed of.
• Appeals: More than 100 patent appeals filed; It further says that more than 50% of trademark appeals have been disposed of.
• Appeals before the IP Appellate Division: The report also highlights that the Delhi High Court has a dedicated IP Appellate Division whereby 35 appeals have been disposed of.
• Pending Cases: Overall 4000+ IPR cases are pending before the IPD and 2000+ Commercial IPR suits are pending before the Delhi High Court

But if one examines the above data closely, there seem to be a few gaps that surely can use some more clarification.

Particulars	Assertions in the Report	Ambiguity
Cases transferred from the IPAB	More than 2000 cases received from the IPAB	The report mentions 947 of these cases (414 patent appeals + 59 original patent petitions + 274 TM appeals + 200+ tm application cases) as highlighted in point no. 1 above). So, what are the other 1000+ cases? And how many of them pertain to copyright and other IPs?
Cases Disposed	750+ cases	Does it include disposal from the 1000 new cases, assuming summary judgements are passed in some? One might assume that this should include 600+ disposals of the IPAB cases and 600 disposals of the Commercial suits (considering Rule 2(l) of the IPD Rules . So, should this be 1200+ Or is this 750+ figure independent of the pending IPAB matters? Do these disposals include only suits or will they also include writs, appeals against the orders of the IPO?
Pendency	4000+	This should ideally include the 2000+ Commercial IPR suits (as mentioned in the report) and 1400 odd IPAB pending matters. But what about other disputes? Writs, pending appeal against the orders of the IPOs?
Appeals by the Appellate Division	35	What about the number of pending appeals or number of appeals which were originally filed?
Patent Appeals	100 patent appeals filed	What about the number of pending appeals and the ones that have been disposed of?
Trademark Appeals	50% of trademark appeals have been disposed of.	It does not give a proper or estimated number nor does it mention the number of appeals filed, or the number of cases pending.

Apart from the above issues, the data (where given) is mostly about patent and trademark cases that have either been transferred from IPAB or have been appealed by the IP offices. However, there is no granular data on the subject wise cases that have been filed or disposed of. For some context, in the Delhi High Court’s Annual Report (2010-12), the organization and presentation of granular data (page 17 onwards) is done not only for the whole year, but also for specific months. Furthermore, the trend of different filings is also highlighted in this report. Perhaps a similar model can be adopted by the court for the IPD annual report next year onwards

The IPD Rules clearly stipulate that the Division hears a plethora of cases on different aspects of different IPs. The type of petitions and applications moved before the IPD are multifarious and include revocation, cancellation, appeals from the orders of the IPOs, writs, disputes dealt by Commercial courts, suits involving IP subject matters. Therefore, access to clear and complete data on different types of IP and the status of all the different types of proceedings will surely help the user/ reader in forming a holistic understanding of the variety of cases adjudicated by the IPD.

H/t to an anonymous reader of the blog for sharing the report. And a big thanks to Swaraj for his input on the post.