In a landmark judgement, the Madras High Court has
restored status quo regarding the patent agent qualification under
the Indian Patent Act, 1970 as was in existence before the Patents
(Amendment) Act of 2005. Justice S. Tamilvalan of the Madras High
Court also declared the amendment to Section 126 of the Patent Act,
1970 as unconstitutional.
Before the passing of the Patents (Amendment) Act of
2005, only advocates and those who possessed a degree in science,
engineering and technology and who had cleared a qualifying exam
could practice as a patent agent before the controller of patents.
The Patents (Amendment) Act of 2005 provided that in
order to get registered as a patent agent one has to pass an
examination conducted by the controller general of patents annually.
In order to apply for registration as a patent agent, one has to be a
citizen of India, above the age of 21, and should have a Bachelor’s
degree in Science or Engineering from a recognised Indian University
or possesses such other equivalent qualifications as the central
government may specify in this behalf.
As per the amended Indian Patent Act, only a person
registered as a patent agent is authorised to practice. In the case
of a partnership, the firm may be described or held out as Patent
Agent, only if all of the partners of the Firm are registered as
patent agents. No company or other body corporate shall practice,
describe itself or hold itself out as Patent Agents or permit itself
to be so described or held out. Each person in the associate group if
any constituted should be a registered Agent and duly authorised by
the concerned person on behalf they act.
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.
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 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.
Even the constitutional provisions have been
violated by the proposed amendment. The amendments to Section 126 of
the Patents Act are also arbitrary and discriminatory. Quashing the
amendment, Justice Tamilvanan observed that by the amendment, the
term “advocates within the meaning of Advocates Act, 1961” has
been unreasonably deleted by the authorities, without any justifiable
reason. Therefore, preventing advocates, who are better qualified
persons, and retaining less qualified persons as patent agents on the
basis of the examination conducted by patents authorities, would not
be justified. The amendment is violative of Article 14 of the
Constitution, as it is an unreasonable class-legislation.
The court also observed that BL or LLB awarded by
any recognised university is a degree of social science in law, and a
practicing lawyer is a social engineer. The court also observed that
the sovereignty
and the constitutional supremacy of the nation cannot be diluted by
raising a plea of international contracts with other countries.
India is a sovereign country not amenable to any outside authority.
Hence, even by way of international treaty or conventions,
constitutional
mandates cannot be taken away.
In short, the impugned amendment was against
Articles 14, 19 (1) (g) and 21 of the Constitution and also against
public interest. This is a good decision and we welcome the same.
However, we strongly recommend that the central government must make
the position clear by a notification that expressly permits the
lawyers to register and act as patent agents.
