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.