As most of you may know compiling litigation data in India is quite the nightmare because our judiciary is terrible at record keeping and even worse at releasing the statistics to the general public. Digitization has improved things slightly but there remain problems with how data is classified by different High Courts. For example when Aparajita filed a Right to Information request with the Delhi High Court for all patent infringement cases, the Registrar sent her a list of all IP cases i.e. trademark, patent, copyright and design – the reason being that the Delhi High Court classifies all IP matters under one head without sub-classifying each IP legislation. The other High Courts appeared to have been worse at record keeping and the RTI replies did not reveal much.
Decrees after trial
In the ten year period of 2005 to 2015, we found a total of 143 patent infringement lawsuits filed before the Delhi High Court, Bombay High Court, Madras High Court and Calcutta High Court. Of these 143 lawsuits, only in 5 lawsuits were judgments delivered by the High Courts after the conclusion of trial. Of these 5 judgments, 2 were from the Delhi High Court and 3 were from the Madras High Court. The two before the Delhi High Court were lawsuits by Roche and Merck. The 3 cases decided by the Madras High Court are M.C. Jayasingh v. Apollo Hospitals, Venkatraman Das v. VNS Innovations. Pvt. Ltd. and Atlas Metal Processors v. H.K. International. In other words just 2% of the patent infringement cases have ended in the delivery of a decree after a trial.
Settled or withdrawn
Around 17 more patent infringement lawsuits or 11.88% were settled by both parties – most of these cases were filed in relation to pharmaceutical patents. Since settlements are confidential we don’t know why exactly the parties settled. One possible reason is that several of the infringers in these cases were marketing companies for larger manufacturers. These companies have low margins and it makes no financial sense for them to litigate expensive lawsuits. The other reason possibly for some lawsuits to be settled is the fact that the defendants lacked financial resources or confidence in the ability of the judicial system to deliver justice. Some others possible settled after the High Court’s judgment in the Merck v. Glenmark case – there were multiple pending lawsuits related to that patent which were settled after the High Court ruled in favour of Merck.
Another 9 lawsuits were unilaterally withdrawn by the patentees, most likely because of the delays or a strong defense, but it is impossible to be certain since the reasons for withdrawal aren’t usually recorded in the order. A vast majority of the 143 lawsuits are therefore pending for more than 3 years, with quite a few, pending for a decade.
Framing of issues & pendency
One of the important markers that we used to identify the progress of cases through the judicial system was the date on which issues are framed. The framing of issues marks the completion of pleadings, disposal of any interlocutory motions (including the motion for an interim injunction) and the beginning of the trial, which is the most time-consuming aspect of civil litigation.
Most astounding however is the patent litigation between Bajaj Auto Ltd. v. TVS Motor Company that was initiated in 2007. This as a very high profile litigation since it involved two domestic giants in the highly competitive motorbike market. The issue of whether an interim injunction could be granted was litigated all the way till the Supreme Court.
What’s the solution?
The question is how do we fix the situation? The usual solutions discussed in India are increasing the number of judges or having special IP courts. I’m not partial to either. In most of these cases, especially those pending before the Delhi High Court, the trial, which is the most time consuming aspect of litigation is conducted before a court commissioner who is usually a retired district judge, who is appointed by the presiding judge and who is paid jointly by both parties. This court commissioner can basically sit whenever the parties are ready. Theoretically these trials should conclude within two-three weeks. This is unlike the situation in cases where High Courts conduct trials themselves and have huge dockets meaning that trials cannot be conducted on a daily basis. Yet, even the trials before court commissioners are taking donkeys years to complete.
What then is the problem?
In my opinion, a large portion of the blame rests with the IP Law Firms in India. Conducting patent infringement trials is extremely resource intensive – law firms need to have skilled, experienced lawyers who are capable of conducting such trials. However the phenomenal rate of attrition at some of these law firms, the generally low pay of IP litigation lawyers and the fact that most of these firms remain family shops means that talented lawyers will usually leave within 3 to 5 years once they’ve gained enough experience. What is perhaps most striking about Indian IP law firms is the absence of junior litigating lawyers joining competing IP law firms.