Relying on specialists

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Debate on wisdom of specialised courts returns

It is no surprise that the recent scrapping of the Intellectual Property Appellate Board (IPAB) – a tribunal that decided on appeals from the patent and trademark office, among others – has been met with mixed reactions. While many lament the narrowing of avenues for the resolution of what are often complex and lengthy intellectual property disputes, some have cheered what they see as the end of an unsuccessful experiment with an inherently flawed specialised court.

With longstanding bottlenecks in courts across India exacerbated by the ongoing pandemic, any curtailing of capacity is problematic. Yet there is little doubt that the IPAB had punched below its weight. To add to this are the concerns about the wisdom of specialist courts. Is it right to assume that specialists, who have mastery over the micro-environment of an IP dispute, are better suited to mete out justice than generalist judges who have the vision to see the bigger picture?

IP law, and for that matter any other specialist area of law, are after all part of the larger body of law. As such, it has long been argued that judges, who are well versed with navigating the intricacies of difficult corporate and other disputes, can be expected to get to grips with the specifics of a difficult IP law-related battle. Chances are that they would do so with great aplomb, and without succumbing to the treacherous currents caused by technical details that lie just below the surface. Be that as it may, with more than 400 judicial vacancies in India’s high courts alone there are not enough judges – but that is a different matter.

This month’s Cover story zeroes in on the decision of the government to close the IPAB. Lawyers who are well versed with India’s courts, and whose opinions we sought, point out that the decision will have negative repercussions, not least because the IPAB in recent months appeared to have gotten its act together. In addition, as DPS Parmar, a former technical member of the IPAB now at LexOrbis in New Delhi says, it “is a step backward to deal with technically complicated patent disputes and will slow down the resolution of appeal cases”. While it may produce further challenges for IP rights holders, will it be a boon for IP jurisprudence in general? Only time will tell.

In Eyes on the spies, we turn the spotlight on anti-counterfeit service agencies that ostensibly protect companies. We detail issues that arise, both in India and in difficult international jurisdictions, when unscrupulous service providers think nothing of setting up fake counterfeit and other schemes in order to bill clients. “Baits” can be set up to trap innocent traders, and enforcements are often carried out without any analysis of the genuineness of products. Our coverage includes these and other crafty schemes that in-house lawyers seeking to protect their brands would be well advised to look out for.

Writing in New to the crew? Here’s what to do, Dibyajyoti Das, a senior legal counsel for South Asia at London Stock Exchange Group, provides insightful advice to in-house lawyers who are moving to a new job. Tips include getting to grips with the life cycle of contracts, assuming negotiating contracts is part of the new job. The bottom line, however, may be to not divulge confidential information picked up in a previous role, and to be mindful of taking it slow while pushing for change.

This month’s What’s the deal? focuses on challenges to guidelines under the Information Technology Act, 2000, announced on 25 February, whicih give unprecedented powers to the government to regulate social media, streaming platforms, and other digital content providers including news portals. Online news organisations challenging the legal basis of the guidelines, and their applicability to news entities, argue they do not fall under its purview. These skirmishes appear to be part of a longer battle that will decide how internet players are allowed to operate.

This month’s Intelligence report provides analysis of a proposal to set up a bad bank to manage rising numbers of bad loans within Indian banks. This is not a novel idea, and the experience of countries such as the US, Sweden and Indonesia suggest that with the right model and approach, a bad bank can prove to be quite effective.

As is to be expected, the set-up of a bad bank would need to suit the requirement of India’s public sector banks, which house a large proportion of these non-performing assets. Yet a mere transfer of bad loans to an asset reconstruction company cannot be expected to solve the problem, as these banks are already controlled by the government, and transferring bad loans from one government entity to another will not achieve the purpose. While identifying prospective buyers will be key to the resolution of stressed assets, it is important that the role of government should be minimal. Just as important is that a team of professionals of integrity be recruited to run and manage the bad bank.