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.