Certificate Course on IPR Litigation

This introductory module has established the fundamentals of Enforcement of Intellectual Property Rights, which would act as a groundwork in comprehending the intricacies of IPR Litigation, as will be elucidated upon in further modules. To summarize, the gist of what we have learnt so far in this module is:

• IP has given its enormous contribution in the modern, digitalized and globalized world today by becoming the largest asset of quite a few companies, and has also advanced public interest by urging creations. Thus, it is crucial to have easily accessible, sufficient and adequately endowed measures for the protection of IP rights. Here comes the need for an effective enforcement of IPR.
• There are numerous and varied rights vested on the owners by different statutes governing the IPs and on a violation or infringement of these rights, the right holder has the right to approach a dispute resolution forum for enforcing his right. These forums include: regular courts, courts under special statues, arbitration, mediation, etc.
• With emphasis on patents in this module, the functions of Patent Offices in most of the nations are administrative in nature rather than judicial, and in India, the Controller is bestowed with quasi- judicial functions, including the powers of a civil court and the power to review its own decisions. An appeal against the order of the Controller lies to the Appellate Board with one of the grounds for appeal being ‘against the order regarding opposition to the grant of Patent’.
• Pre grant and Post grant opposition are permitted by the Patents Act, with the former acting as a guard to confirm the validity of the patent applications before patents are granted to them and the latter, resolving any issue with the grant of patent at the earliest, rather than awaiting the technical litigation process.
• Further, the module emphasizes on the emerging menace of counterfeiting (infringement of a trademark) and piracy (infringement of copyright), and elucidates on the civil remedies, criminal remedies, administrative remedies and border measures provided for by numerous statutes like the IPC, Customs Act, IT Act, Money Laundering Act, etc., and also lays down the judicial interpretation on the remedies that have been awarded by the courts, including some landmark judgments.
• Procedurally, owing to the lengthy litigation procedures, the courts have started adopting and encouraging fast- track mechanisms to curb delays, especially in IP matters, considering the voluminous sum of money and confidentiality involved. Also, to ensure complete delivery of justice, an elaborate appeal procedure is provided by virtue of the Acts and the CPC.
• In any litigation, presentation of evidence holds great significance and with something as essential as IPs where the standard of proof is based on the preponderance of probabilities, there are various forms of evidences that can be produced before the courts to establish the facts. These majorly include Documentary, Real and Expert Evidence with others like Survey evidence, Evidence during Investigation, Pre-Trial Discovery, etc.

TRIPS Agreement is the most important agreement with respect to the international legal framework considering its holistic approach, since it lays down general principles governing the IPs and their enforcement by providing for effective remedies. Other international instruments on IP include: Paris Convention, Berne Convention, Madrid Protocol, Patent Cooperation Treaty, etc.