The conduct of patent agent examination and
corresponding registration of patent agents under the Indian Patent
Act, 1970 is a controversial issue. After the amendments in the
Indian Patent Act in 2005, the lawyers were disqualified from
automatically becoming the patent agents under the Indian Patent Act.
Now after the judgment of Madras High court, Indian
lawyers can be patent agents under Indian patents act 1970 without
passing the patent agent exam.
The conduct of patent agents’ examination was also
subjected to judicial scrutiny. One such litigation pertained to
fixing of the minimum number of marks that a candidate was required
to obtain in viva voce to qualify as a patent agent. This criterion
was challenged before the Division Bench of Delhi High Court in Ms.
Anvita Singh v Union of India, WP (C) No.4376/2011.
At the outset it must be mentioned that this case
pertained to a non legal professional who obtained a Masters in
Science Degree and appeared for patent agent examination thrice.
However, she could not obtain the minimum number of marks in the viva
and hence was not selected. She approached the Delhi High Court to
declare that the minimum number requirement in the viva was arbitrary
and unconstitutional.
It may be argued that this judgment is not
applicable to lawyers but to non lawyers and that too for the limited
extent of fixing the arbitrary minimum marks to be obtained in viva.
The requirement of lawyers undergoing the patent examination to
become a patent agent was not discussed and decided by the Court.
The court observed that it is a case of self
employment namely a person who gets registration as patent agent has
to fend for himself/herself. In that sense, the concerned patent
agent becomes a professional. Whether such a person is able to
generate work and do well in the profession would depend upon his/her
caliber and other attributes enabling him to generate such
professional work. By making him/her a patent agent no monitory or
other benefits are accorded to that agent by the State or the patent
office.
At the same time, the purpose is to lay down the
minimum professional standards for these patent agents so that they
are in a position to discharge their duties effectively and are able
to assist the Controller in dealing with and taking decision on the
matters brought before the Controller by the patent agents. This
expectation is legitimate and is necessary for the dispensation of
all statutory duties the Controller is required to discharge. In that
limited position of patent agent can be to that of an Advocate
appearing before the Court and assisting the Court in a meaningful
manner.
The Court observed that lawyers play an important
role in the administration of justice. Judges cannot perform their
task of dispensing justice effectively, without the support of
lawyers. With the aforesaid role of an advocate from whom
expectations are much higher, his competence cannot judged merely by
any interview or viva voce. Prescribing this condition with minimum
50% marks for a Patent Agent appears to be a tall order.
It is the confidence which a concerned client
reposes in the patent agent that matters the most. If a particular
patent agent is not good enough, he/she may not get much work.
Thus, the minimum 50 per cent mark which acquires
100 percent weightage may not be appropriate. This is more so when
the rule mandates securing 60 per cent marks in aggregate in all
three papers i.e. two written and one viva voce test. This rule is
therefore arbitrary and becomes violative of Article 14 of the
constitution. To this extent namely prescribing minimum 50 per cent
marks in the viva voce is struck down.
Te Court issued mandamus to the respondents to
register the petitioner as the patent agent.
The discussion of this decision clearly showed the
importance and supremacy of lawyers while assisting various courts,
tribunals and even patent controller. The decision can never be
considered to be a mandate that lawyers need to pass the patent agent
examination to be patent agent or that the Patents (Amendment) Act of
2005/Section 126 of the Patent Act, 1970 is constitutional and valid.
Any such interpretation is simply an ignorant interpretation of this
judgment.
