A specialist tribunal exists to supply expertise a general court lacks. The IPAB spent its final years without the specialists — and in 2019 a High Court directed it to hear matters anyway.
What happened
The IPAB listed trademark hearings for July 2019, on short notice, surprising many advocates — because the tribunal had no technical member for trademarks, and so should not have been hearing trademark matters under the law.
What the IPAB was meant to be
A quasi-judicial body set up to address IP issues, streamline the legal process, improve efficiency and give litigants quicker access to justice. On its performance over its final years, it delivered on none of those: matters took years to reach substantive hearing, and it repeatedly failed to maintain the quorum the law mandates.
Established to hear appeals from the Trade Marks Registry, its scope later expanded to patents, copyright and plant variety protection. Under the Trade Marks Act it must comprise at least two members — a judicial member and a technical member — with the technical member being discipline-specific. That specificity is the entire rationale: the tribunal existed to supply expertise in disposing of IP matters.
The government proved unable to find suitably qualified candidates. At the relevant time the IPAB had a technical member for plant variety protection only — meaning it was not eligible to hear trademark or patent matters at all.
The court’s response
In Mylan Laboratories Limited v. Union of India, the Delhi High Court directed the IPAB to dispose of “urgent matters relating to Patents, Trade Marks and Copyright” despite the absence of the statutory quorum.
The underlying writ challenged an order of the Deputy Controller dismissing a pre-grant opposition and granting a patent. With the IPAB unable to hear it, the petitioner was entitled to approach the High Court.
The court directed the IPAB to report on its vacancies, and the report was damning:
- The IPAB had never heard a single copyright case since its inception in 2003, because no technical member for copyright was ever appointed.
- The post of Vice-Chairman had been vacant for almost seven years, and was then vacant for five. The Technical Member for Trade Marks post had been vacant six months.
- The Technical Member for Patents post had been vacant more than two years, so no effective hearing of patent appeals had taken place in that period.
Sixteen years without hearing a copyright matter is not a backlog. It is a jurisdiction that existed only on paper.
Why the order was doubted
Justice Midha correctly concluded that the IPAB had failed its mandate. But the order itself was hard to reconcile with that finding. At paragraph 35 he held that the doctrine of necessity applied — that the legislative intent was the continuity of the IPAB, not its cessation for want of a technical member, and that orders passed without one would not be invalid for lack of coram.
The difficulty is plain: the reason for establishing the IPAB was technical expertise, and that purpose is not served by a bench constituted without the relevant technical member.
The supporting authority was thin. Two of the orders cited did not deal with inadequate quorum; the other two did not address the exercise of judicial powers by a tribunal. Against that, it is well settled that a statutory quorum requirement cannot be arbitrarily disregarded.
The point had arisen before. In Natco Pharma Limited v. Union of India, with no technical member on the IPAB, the Supreme Court appointed an ad-hoc member so the quorum requirement was met before disposal. Justice Midha cited that order and reached the opposite conclusion.
And in practice, most matters listed for the July hearing were adjourned to December — so no benefit was derived from holding hearings without quorum, while litigants incurred legal fees for attending an unnecessary hearing.
How it ended
The dysfunction described here was terminal. The IPAB was abolished in April 2021 by the Tribunals Reforms Ordinance, and its jurisdiction transferred to the High Courts — with the Delhi High Court constituting the country’s first Intellectual Property Division three months later.
Read now, this post explains why abolition followed. A tribunal that had never heard a copyright case, could not hear patent appeals for two years, and required a High Court order and the doctrine of necessity to sit at all was not a functioning forum.
What was lost with it is worth noting too: the specialist technical membership the IPAB was designed around, and its rate-setting functions under the Copyright Act, neither of which transfers cleanly to a general court.
The takeaways
- The IPAB required a discipline-specific technical member — that was its whole rationale.
- It never heard a copyright case in sixteen years for want of an appointment.
- The doctrine of necessity was invoked to permit hearings without quorum.
- Abolition followed in 2021 — jurisdiction now sits with the High Courts.
Frequently asked questions
What quorum did the IPAB require? At least a judicial member and a discipline-specific technical member for the subject matter concerned.
Did the IPAB ever hear copyright matters? No — it never heard a single copyright case from its inception in 2003, because a technical member for copyright was never appointed.
What is the doctrine of necessity? A principle permitting a body to act despite a defect that would ordinarily disqualify it, where the alternative is that no decision can be made at all.
Where do IP appeals go now? To the High Courts, following the IPAB’s abolition in 2021, several of which have constituted dedicated IP divisions.