Written by Rahul Kumar,2nd year student, Law College Dehradun
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser- in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” Abraham Lincoln
Where everyone says that time is money, but clearly no one seems to adhere to this adage in the courts of the law in India. It’s nothing new to hear that shortage of judges, inefficient administration, delaying tactics adopted by the lawyers in the court and several other factors have led to the massive pendency of cases in the Indian courts. IPR disputes also suffer from the same kind of problems of delay, particularly in the patent litigation are quite stark. The few cases that go to trial take forever to decide. It is to be noted that out of 143 suits filed for the patent infringement between 2005 to 2015, only five judgments have been delivered yet. Not only these delays affect the individual who is looking for speedy justice but they also have a devastating effect on their business.
So, it is very clear that we need some alternative and the best alternative is the mechanism of Alternative Dispute Resolution (ADR). World Intellectual Property Organization (WIPO), defines “ADR” as a “neutral mechanism that allows parties to solve their disputes outside of court in a private forum, with the assistance of a neutral party playing the role of a facilitator, who helps the parties reach their interests.” ADR today includes a variety of dispute resolution mechanisms like mediation, arbitration, conciliation and negotiation. Mediation, therefore, provides a perfect mechanism for resolving IPR disputes since it merely focuses on parties’ interests and on reaching a settlement rather than litigation that bringing in a position where one party is the winner and the other a loser.
It’s not wrong or early to say that mediation of IPR claims and disputes is slowly gaining traction in India. with a positive response towards adopting mechanisms of ADR for resolving IPR disputes and in order to deal with the backlog of cases, the Controller General of Patent Designs and Trade Marks, in collaboration with the Delhi Legal Services Authority (DLSA), had referred around 500 pending oppositions and rectifications in the Trademarks Registry (TMR), Delhi, to mediation and conciliation via notice, dated 31stMarch 2016, under the Legal Services Authorities Act, 1987. Mediation has achieved yet another status in the cases of the IPR by the insertion of the provisions of Section 12A in the Commercial Courts Act of 2015 (“The Act”) via Chapter IIIA of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018 (“The Ordinance”) to mandate pre-institution mediation and settlement in cases where no urgent relief has been sought. Also (Under Section 2(c) of the Act, “commercial disputes” include disputes arising out of intellectual property rights.) The persons who can act as mediators in such cases are to be construed from the provisions under the Legal Services Authority Act, 1987. It is required to be completed within a period of three months which may further be extended by two months. The settlement signed and agreed upon will have the same effect as that of an arbitral award under the Arbitration and Conciliation Act, 1996. It is also to be noted that on 3rd July 2018, Central Government notified Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 for standardizing and prioritizing such mediation processes to provide speedy justice. These steps display a progressive approach to deal with the backlog of cases and ultimately promoting ADR. These steps will really promote the parties to opt for Mediation to solve their problems concerning IPR. It is to be noted that recently WIPO has also understood the importance of this mechanism and has given strong guidelines in the form of a report to promote the mechanism of ADR in the cases of IPR.
So, It is very important that everyone must understand the importance of ADR and try not to involve in the dogmatic litigation process.