The Madras High Court judgment in SP.Chockalingam V
Controller of Patents has created many ripples in the otherwise calm
waters of patent agents’ arena. As per the judgment, Indian
lawyers can be patent agents under Indian patents act 1970 without
passing the patent agent exam.
Add to this the judgement of Division bench of Delhi
High Court in Ms.
Anvita Singh v Union of India, WP (C) No.4376/2011 that
deals with another aspect of patent agents’ examination i.e.
strucking down the minimum marks scoring in the viva of patent agents
exam aspect.
The real trouble for lawyers started in the year
2002 when an amendment was made to the Indian Patent Act, 1970 and
the qualification of a patent agent was changed from a mere
recognised degree to a degree in science, engineering or technology.
Thereafter, in the year 2005 the clause that supported lawyers with
science background to be eligible to be patent agent was deleted from
section 126 f the Indian Patents act, 1970.
This 2005 amendment was challenged before the Madras
High Court although the petitioner must have challenged the 2002
amendment as well. However, the Madras High Court was quick to notice
this fact, and it declared that a law degree is a social science
degree and a lawyer is a social engineer.
In effect, the Madras High Court has not only
restored the pre 2005 legal position regarding the qualification of a
patent agent but has also diluted the impact of 2002 amendment
itself. The practical effect of this judgement on the present patent
act is that vis-à-vis the patent agents qualification the position
before 2005 would prevail i.e. section 126 (c) (i) would remain on
the statue book.
Now it means that lawyers with a science,
engineering or technology background would automatically become a
patent agent without any requirement of clearing the patent agents’
exam.
The Court was aware that this would also create the
trouble as a dominant majority of lawyers are from arts or commerce
background. Thus, it was necessary to struck down the 2002 amendment
as well but the same was not pleaded by the petitioner in the present
case.
The Court came to the rescue of those non science
degree based lawyers by declared that a law degree is a social
science degree and a lawyer is a social engineer. This means that
even the 2002 amendment have been diluted as now in section 126 (c)
the science degrees would include a law degree as well. Not only this
lawyer is a social engineer as well and this means that the elements
of engineering are also there. Clearly, the law degree from a
recognised university and an enrollment with the Bar Council of India
would automatically entitle the practicing lawyer to be patent agent.
Howsoever absurd this interpretation may appear to the readers but
this is the practical implication of the Madras High Court judgement.
The Court also gave a strong justification to do so. The Court
observed that a science degree may be relating to physics, chemistry,
zoology, botany, statistics, biotechnology, bio-chemistry, veterinary
science, nursing etc. Similarly, engineering or technology is also a
vast subject. Hence, it cannot be presumed that a B.Sc., graduate in
statistics, zoology or nursing shall be well versed in cases relating
to engineering and technology under the Patents Act.
Similarly, it cannot be decided that a degree holder
in physics, chemistry, engineering or technology could be an expert
in forensic science, biology or zoology. Merely by prescribing
qualification, as degree holder in science, engineering or technology
and passing a departmental examination on Patents Act and drafting,
the respondents cannot monopolise such category of persons and say
that Advocates are not competent to be patent agents and similarly
the right that was available to advocates under Section 126 (1) (c)
(i) of the Act, could not be taken away against the Constitutional
safeguards, by way of the impugned amendment.
Regarding international obligations of India under
WTO/TRIPS Agreement, it is obvious that international obligations
cannot override national
sovereignty of India. The mandates
of Indian constitution cannot be taken away by
international obligations under the WTO/TRIPS. For example, recently
India
justified its preferential market access (PMA) policy for domestic
telecom equipments manufacturers. On the face of it this
is a clear violation of WTO norms but on a detailed analysis it is
clear that national security cannot be compromised for the sake of
maintaining international relations and obligations.
Now let us analyse the perspective of lawyers in
this regard. The net effect of the 2005 amendment is that a
lawyer has to pass three stages to become a patent agent. First she
must be a science/engineer/technology graduate from a recognised
university in India. Secondly she must be a lawyer. Thirdly she must
clear the patent agent examination. This is definitely expecting too
much from a lawyer to be a patent agent.
Here lies the real problem as an advocate who is
entitled to practice even before the Supreme Court of India is barred
from practicing before the controller unless she clears the patent
exam. Even worst, the central government failed to prescribe
alternative qualifications of patents agent that can practice before
the controller. The central government must comes up with additional
qualifications that would be allowed to be incorporated in Section
126(c) and a practicing lawyer can be one of them. This can solve the
entire problem.
At Perry4Law
Organisation and Perry4Law’s
Techno Legal Base (PTLB) we believe that the central
government must prescribed the law degree from a recognised
institution coupled with an enrollment with the Bar Council of India
as one of the essential qualification to be a patent agent. There is
nothing that forbids lawyers from seeking the help of other patent
agents and technical professional if she faced any technical
difficulties.
Even otherwise the controller cannot prevent a
lawyer from appearing on behalf of her client while filing the patent
application if she holds a valid power of attorney. The provisions of
the amended Patent Act are inherently defective and self
contradictory. For instance, section 132 has been amended by the 2002
amendment and it virtually abrogated the power of attorney concept
and restricted the role of lawyers to hearing before the Controller
alone.
With the 2005 amendment Section 126 was further
amended and clause (i) of Section 126(c) was omitted. It seems there
was a clear intention on the part of Indian government to keep
lawyers away from patent filing and taking part in various proceeding
under the Indian Patent act, 1970 before the controller.
It is surprising why it took more than a decade i.e.
after the 2002 amendment for lawyers to agitate this issue.
Interestingly, another writ petition is also pending before the High
Court of Kerala. It is high time for both the central government and
the Supreme Court of India to interfere in this matter and bring
uniformity of practice all over India once and for all.
While doing so, the Supreme Court and central
government must keep in mind that generally the five year integrated
course law students can never be patents agents with the present
criteria. Similarly, three year law students cannot be patent agents
till they have a science background and they clear the patent agent
examination. The LL.B degree is a complete waste in the present
situation as only science degree and patent agent examination is
recognised.
There was an urgent need to seek clarification about
Section 126 as it stands on date and the Madras High Court has
exactly done so.
Before closing this discussion, we would like to
stress that party autonomy must be respected by both the controller
and Indian government. If an inventor is more comfortable with a
lawyer, she should not be forced to seek the services of a patent
agent simply because lawyers have been systematically barred from the
patent proceeding under the Indian Patent Act, 1970.
A duly executed power of attorney in favour of a
lawyer should be sufficient to allow her to file a patent application
and take part in various proceedings before the controller of
Patents. If a lawyer is not competent to draft and file a patent
application and patent specification, let the concerned party decide
the same. Further, if there is any defect in the patent application
and patent specification, the controller can always point out to the
same.
But presuming that lawyers are not competent or
qualified to file a patent application and patent specification is
ignorance of the ground reality and the expertise that legal
fraternity possess. It is high time to think about these issues as
soon as possible to bring justness, transparency and accountability
in the patent proceedings before the controller.
