Wednesday, March 26, 2014

Does the IPAB have the Power to Review its Own Decisions?

The provision that vests the Intellectual Property Appellate Board (IPAB) with the powers of a civil court is Section 92 of the Trademarks Act, which is reproduced below:

92. Procedure and powers of Appellate Board.-
(1) The Appellate Board shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908 ) but shall be guided by principles of natural justice and subject to the provisions of this Act and the rules made thereunder, the Appellate Board shall have powers to regulate its own procedure including the fixing of places and times of its hearing.
(2) The Appellate Board shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908 ) while trying a suit in respect of the following matters, namely:-
(a) receiving evidence;
(b) issuing commissions for examination of witnesses;
(c) requisitioning any public record; and
(d) any other matter which may be prescribed.
(3) Any proceeding before the Appellate Board shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860 ), and the Appellate Board shall be deemed to b a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974 ).

This provision is largely identical to Section 77 of the Patents Act and Section 127 of the Trademarks Act. However, the power of review is conspicuous by its absence. Can it be argued that the power of review is an inherent one? 

This issue was addressed in the IPAB’s order no. 134/2009 dated August 21, 2009 in OA/1 /2007/PT/CH. In this decision, the IPAB held that since the Board was the creation of a statute, it could not vest itself with powers of substantive review unless the statute expressly provided for it. The power of procedural review, however, being ancillary to its function, was inherent in it. To support this, the Board cited a few decisions of the Supreme Court, the Grindlays decision being a prominent one.

Reproduced below is the relevant extract from the Grindlays decision:

The decision in Narshi Thakershi v. Pradyumansinghji is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of s. 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in s. 11. The answer to the question is, therefore, to be found in sub-s. (1) of s. 11 and not in sub-s. (3) of s. 11. Furthermore, different considerations arise on review. The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. 

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