Delhi High Court has issued the rules for its intellectual property division (IPD) with respect to practice and procedure for the exercise of its original and appellate jurisdiction regarding matters listed before it.
The IPD, which will have special benches to deal with all IP-related cases, was created following the abolition of the IP Appellate Board (IPAB) by the federal government on 4 April 2021. With the axing, the IPAB’s jurisdiction has been returned to the high courts, placing an additional burden on a judiciary that is already reeling under a massive backlog of cases.
With the setting up of the IPD and issuance of the rules, Delhi High Court has taken the lead in setting up a mechanism to ensure efficient disposal of IP matters. The draft rules were framed by a committee comprising justices Prathiba Singh and Sanjeev Narula.
The IPD will adjudicate on all IP matters pertaining to statutory claims as well as enforcement of common law remedies like passing off, unfair competition, disparagement, tortious activities, etc. The division will deal with all original, appellate and other proceedings related to IP including original proceedings, civil revision petitions, writ petitions (civil), regular first appeals and first appeals from orders, except cases to be dealt with by the Division Bench of the high court.
According to the rules, suits before the IPD shall be governed by the provisions of the Commercial Courts Act, 2015, and also the Delhi High Court (Original Side) Rules, 2018. In addition to these rules, patent suits and actions shall be governed by the Patent Suit Rules, 2021.
In all matters filed before the IPD, an advance copy, including the likely listing date, shall be served at the address for service and through email, upon the respondents and their counsel, at least 48 hours in advance.
“For the sake of expeditious disposal, no further notice would be liable to be issued and the matter may be heard and disposed of on the first day of listing,” the rules state, also allowing for “intervention by third parties suo moto, or on an application by any person”.
Where there are multiple proceedings relating to the same or related IPR, irrespective of whether these proceedings are between the same parties or not, the IPD shall have the power and the discretion to direct consolidation of proceedings and hearings, and also to direct consolidated recording of evidence/common trial and consolidated adjudication.
The court may, in any IP rights matter, seek the assistance of subject matter experts as necessary. However, the opinion of the expert “shall be persuasive in nature and not binding on the court”. The IPD may maintain a panel of experts to assist the court, and the panel may be reviewed from time to time.
In the case of evidence by experts, the rules recommend the inclusion of new techniques for the recordal of evidence, such as “hot-tubbing”. Also known as concurrent evidence, hot-tubbing is the practice of having expert witnesses of the same discipline be in the witness box and available at the same time to give evidence, and for the judge to question.