Pre-institution mediation, abolishing IP Appellate Board to help MSMEs with speedy justice: Law ministry

Pre-institution mediation was introduced by inserting section 12A into the Commercial Courts Act, 2015. (Image: Bloomberg)

Ease of Doing Business for MSMEs: Pre-institution mediation, which was introduced by inserting section 12A into the Commercial Courts Act, 2015, for businesses to accelerate the settlement of commercial disputes, is very important for MSMEs to have speedy justice given the long time taken in litigation in courts, according to GR Raghavendra, Joint Secretary, Department of Justice, Ministry of Law and Justice. “If (there is) any infringement of IP rights, we wanted to have a speedy justice given our litigation may take a long time sometime. We wanted voluntary mediation mechanism to be introduced which is very important for all MSMEs,” said Raghavendra at a webinar organised by CII on the occasion of the World IP Day on Monday.

Importantly, the government had promulgated an ordinance on April 4, 2021, to abolish five appellate tribunals including the Intellectual Property Appellate Board (IPAB) that looked after disputes between organisations pertaining to intellectual property (IP). The move was aimed to streamline the dispensation of justice without much delay while high courts, commercial courts, etc., in the country, are likely to take up the IP-related disputes. “Abolishing IPAB and introducing the single judge commercial bench of the high court to deal with these (IP) cases is a win-win situation for MSMEs,” added Raghavendra.

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However, when it comes to infringement of patents, MSMEs have been seeking the appointment of independent experts for opinions before the court instead of experts retained by the “interested” parties. “When an Indian patent is infringed upon, the mode of dispute resolution usually ends up in high courts. The current legal system may need some thoughts. There are some instances when it has been years past the patent’s expiration and the court case is still ongoing for decades. Most, if not all, IP rights require an expert in that field to truly understand it in depth. But there is no scope in the Indian legal system whereby an independent or a government/court expert in the field is called to give an opinion before the court. It is only experts retained by the “interested” parties to advise on “their” expertise which is usually in favour of the party that has retained them. The court should have the right to appoint an expert, instead of depending on experts hired by “interested” parties,” said Shilpan Patel, Chairman, Arrow Green Tech.

Patel underscored that there is by default a national bias among people and judges and government officials are not immune to it. This in a way could be a challenge for small businesses. For instance, the chances of say, a non-Indian judge in an international court, giving a fair or favourable verdict to an Indian party are slim so, to say the least. “No government official, judge, patent office personnel can be fully immune to some degree of national bias. and if you are a small company with no enough reach and capital to hire a prestigious local law firm, things get more complex and time-consuming, to say the least. Some type of government support and backing is essential in such instances if we want to protect the IPR owned by Indian entities, outside India to protect and incentivise budding innovators.”