Monthly Archives: April 2013

US International Trade Commission Held That Apple Did Not Violate Google’s Patent

US International Trade Commission Held That Apple Did Not Violate Google’s PatentApple has been defending itself against a patent infringement suit file by Google. The bone of contention was Google’s patent to make the popular iPhones. The matter was pending before the US International Trade Commission that ruled that Apple did not violate Google’s patent.

Google alleged that apple has violated six patents for iPhone-related technology that range from reducing signal noise to programming the device’s touchscreen so that a user does not accidentally activate it while talking on the phone.

If Apple had been found guilty of violating Google’s patent, its devices could have been banned from being imported into the United States. Google has now the option to appeal against this decision to the US Court of Appeals for the Federal Circuit. As on date, Google is exploring all available options in this regard.

It seems Google would not be able to successfully pursue Android’s wide-scale patent infringement issues through litigation over Motorola’s patents, which have given it no real leverage so far. Google has been unable to deter third-party patent holders such as Apple, Microsoft and Nokia from enforcing their rights.

Recently the Mannheim Regional Court decided that Google’s Motorola Mobility is not entitled to an injunction against Microsoft over its push notification patent because Google owes Microsoft a license under an ActiveSync license agreement.

It seems Google has to revisit its intellectual property rights protection and licensing arrangement so that it may not face any more defeats in the patent infringement suits.

Apple has been very active in protecting its intellectual property rights. Recently, USPTO granted Apple trademarks for its retail outlets designs and layout.  However, Apple is also on the receiving end via-a-vis other’s intellectual property violations. For instance, Apple was recently fined in Beijing Court for unauthorised e-book sales.

Patent litigations are on rise around the world. Japanese company Kawasaki Heavy Industries (KHI) accused Chinese company CSR Sifang of stealing its Shinkansen bullet trains.  Similarly, Novartis lost the patent claims of Novartis AG’s cancer treatment drug Glivec in Supreme Court of India.

Intellectual property has become a policy matter as well. A proposed U.S. legislation would target companies using stolen intellectual property of U.S. The Copyright Amendment Act, 2012 of India has strengthened digital rights protection of copyrighted works in India. Similarly, the idea of conferring utility models protection in India is also under consideration.

The coming time would be really tough for those who wish to enforce their intellectual property rights around the world.

Japanese Company Kawasaki Heavy Industries (KHI) Accused Chinese Company CSR Sifang Of Stealing Its Shinkansen Bullet Trains

Japanese Company Kawasaki Heavy Industries (KHI) Accused Chinese Company CSR Sifang Of Stealing Its Shinkansen Bullet TrainsIntellectual property rights protection and their continued enjoyment to the exclusion of others is one of the strongest motivations to innovate and spend considerable amount on research and development. One feels cheated when his hard work and tremendous investment is misappropriated by other at almost not cost.

Japan has alleged that its Shinkansen bullet trains have been pirated by China. Even the value creation concept mooted by few did not find favour with the Japanese company manufacturing the trains in question.

Kawasaki Heavy Industries (KHI), the maker Shinkansen bullet trains, is feeling cheated due to this entire episode. After signing technology transfers with CSR Sifang, the builder of China’s impressive, new high-speed rail, KHI says it deeply regrets its now-dissolved partnership. Initially, KHI planned to sue its previously junior partner for patent infringement, but subsequently it changed its mind.

Countries around the world are demanding technology transfer agreements while allowing the foreign companies to establish place of business in their territories. Some even extend benefits, financial and non financial, in lieu of technology transfer.

In the field of telecom equipments, countries generally ask for the source code of hardware and software. As a trade off for earning profit in lucrative markets like china and India, companies generally comply with this demand of respective governments.

KHI is annoyed with CSR Sifang as the latter not only copied its technology after patenting remarkably similar high-speed-rail (HSR) tech but CSR now wants to sell it to the rest of the world as a Chinese product.

Both Japanese and European rail firms are struggling to increase their sales volume and this decision of China and Chinese companies to sell China made rails would create more trouble for them. Chinese companies would now compete with Japanese and European companies both inside and outside Chinese markets.

What made KHI very disturbed is the fact that under the licensing agreements with KHI, China’s use of the expertise and blueprints to develop high-speed railway cars was to be limited to domestic application and markets.

Although KHI was not comfortable with the terms and conditions of the technology transfer agreement yet it signed the same in the hope that the terms and conditions of the agreement would be legally binding.

China sees no wrong in this deal and its legal interpretation. The Chinese authorities are now planning to file for HSR patents abroad and that may cover the lucrative market of India. China is also maintaining that Chinese product is much more superior to the products of Japan and Germany. However, some feel that there is no real innovation in the rail products of China. If this is the case, the KHI’s train technology transfer episode may take a very long time to resolve.

Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited, [2013] UKSC 18

Public Relations Consultants Association Limited v The Newspaper Licensing Agency Limited, [2013] UKSC 18A question that has been answered in negative by courts around the world has refused to die. The question is whether an Internet user, by mere viewing of a copyright protected work, commits the copyright infringement. Obviously, this question is asked due to the ignorance of the manner in which technology is used to view online contents.

At Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) we reiterate that if a person is looking at an online content, through a natural and automatic process, the copies (cache) of such content is normally and temporarily stored on the computer of that person irrespective of the intentions of that person. That storing process cannot be termed as copying of a copyright protected work and there cannot be a copyright violation liability against such person.

This question came before the UK Supreme Court for its analysis and decision. The crux of the issue was the cache and hence it is important to analyse the process in brief here. Generally, cache is essential and to some extent mandatory for the Internet user to view and access the webpages. The cache also helps in fast loading of the contents if the viewer wishes to revisit the previously visited page. If cookies have been used in the previous session that may further facilitate easier and better targeted access to the intended pages.

Once stored on the computer of the user, the cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity and on the volume and timing of the end-user’s internet usage. There are browsers that erase the cache the moment such browsers are turned off. Further, some software can also erase the temporary stored files, including the cookies and Internet history, with a simple click of the mouse. We are not going into the details of cache aspect as we are presently analysing the judgement in hand.

The court has analysed the issue from the perspective of a common user and not a tech savvy user. The court observed that in such cases the end-user does not intend to make a copy of the web-page unless he chooses to download it or print it out. His object is to view the material. The copies temporarily retained on the screen or the internet caches are merely the incidental consequence of his use of a computer to do that.

The Court further observed that once it is accepted that part of the purpose of applicable law/article is to authorise the making of copies to enable the end-user to view copyright material on the internet, the various conditions laid down by that article must be construed so far as possible in a manner consistent with that purpose. It must apply to the ordinary technical processes associated with internet browsing. The making of copies in the internet cache and on screen should be an integral and essential part of a technological process.

Unless the users download or print out the material (in which case it is not disputed that they require a licence), the sole economic value which they derive from accessing information on the website is derived from the mere fact of reading it on screen.

The “storage” of the material, i.e. the creation of copies in the cache or on screen, is the automatic result of browsing the internet. It requires no other human intervention than the decision to access the relevant web-page. Its deletion is the equally automatic result of the lapse of time coupled with the continuing use of the browser. The “technological processes in question” are those necessarily associated with web browsing, including the retention of material in the cache. It is retained there for no longer than the ordinary processes associated with internet use continue.

They call for three comments in the present context. The first is that the effect of creating copies in the internet cache or on screen in the course of browsing, must be judged in the light of the normal operation of a computer or its browser. It is not enough that forensic ingenuity can devise a method of extending to some extent the life of copies which are by their nature temporary.

Secondly, the question is whether human intervention is required to delete the material. There is a difference between a discretionary decision to extend the duration of what remains an automatic process, and the storage of a copy of material in the course of the browsing in a manner which will ensure that it is permanent unless and until a discretionary decision is made to delete or destroy it.

Third, if the mere fact that it is in principle possible to close down a computer, alter the browser settings to enlarge the internet cache or leave an image on screen indefinitely were enough to prevent article 5.1 from applying, then it would never apply to internet browsing. This would frustrate the purpose of the legislation.

All that article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form, notwithstanding that the technical processes involved incidentally include the making of temporary copies within the electronic equipment employed.

If it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

The Court further observed that before making any order on this appeal, the court should refer to the Court of Justice the question whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process, are satisfied by the technical features described at paragraphs 2 and 31-32 of this judgment, having regard in particular to the fact that a copy of protected material may in the ordinary course of internet usage remain in the cache for a period of time after the browsing session which has generated that copy is completed until it is overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the user.

Legal Analysis Of SP.Chockalingam v Controller of Patents & Anr And Its Legal Consequences

Legal Analysis Of SP.Chockalingam v Controller of Patents & Anr And Its Legal ConsequencesThe 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.

Abridged Judgement Of SP.Chockalingam v Controller of Patents & Anr W.P.No.8472 Of 2006

Abridged Judgement Of SP.Chockalingam v Controller of Patents & Anr W.P.No.8472 Of 2006Recently the Madras High Court held that Indian lawyers can be patent agents under Indian Patents Act 1970 without passing the patent agent exam. Previously a Division bench of Delhi High Court in Ms. Anvita Singh v Union of India, WP (C) No.4376/2011 discussed the role and importance e of lawyers for the society and judicial system of India. The Delhi High court also held that prescribing minimum marks to be obtainable in viva was unconstitutional and violative of Article 14 of the Indian Constitution.

The point is straight forward. The patent agent examination is not free from controversies and High Courts are declaring its aspects unconstitutional piece by piece. The present writ was filed under Article 226 of the Constitution of India by patent lawyer SP.Chockalingam.

The writ was seeking an order in the nature of Writ of Declaration, to declare the amendment introduced to Section 126 of the Patent Act, 1970 by Section 67 (a) of the Patents (Amendment) Act, 2005 (Act 15 of 2005) as illegal, unconstitutional, ultra vires and void.

It was contended by the petitioner that though science is a vast subject, having various specialisation and branches, such as Physics, Chemistry, Computer Science, Biotechnology, Pharmaceutical Science, Animal Husbandry, Nursing etc., any degree holder in Science, Engineering or Technology having passed the qualifying examination prescribed and conducted by the respondents for the purpose is eligible to register as patent agent. Though there was no bar for an Advocate to register and function as patent agent, as a matter of right, prior to the amendment, in view of the impugned amendment, the said right is not available to any Advocate at present, as the same was taken away against the Constitutional mandate.

It was also alleged that the Patents Act and Rules framed thereunder empowers the respondents, in prescribing the syllabus, conducting exam, appointing patent agents and also power to remove patent agents. The Court can take judicial notice that after the impugned amendment, normally such patent agents may not be practicing advocates before High Courts or Supreme Court, as the amended Act has taken away the rights of Advocates, to register as patent agents as a matter of right, that was available prior to the amendment, under Section 126 (1) (c) (i) of the Act.

Therefore, in all practical purposes, after the amendment, the patent agents have been made amenable to the respondents, since the term advocate has been deleted from the section. It is further contended that if a practicing lawyer is permitted to register as patent agent, as per the Act, prior to the amendment, being a legal practitioner, he may directly approach the High Court and the Supreme Court, in case an order passed by an authority under the Patents Act is against law. Hence, prior to the amendment, the authority was made more vigil in following Rule of law and passing proper and appropriate orders, regarding the duties and functions of patent agents. If all the patent agents are selected only by the respondents, as per the procedure prescribed by the respondents, leaving Advocates, there would be no broad outlook in the functioning of patent agents, in respect of preparation, drafting, filing and appearing before the first respondent and make proper and broader interpretation of law, relating to Patents Act. Therefore, preventing advocates, who are more qualified in preparing documents, drafting, transact business before the Controller and permitting only the degree holders in science, engineering or technology, who passed the Departmental examination conducted by the respondents, by way of the impugned amendment, that would certainly narrow down the skill of patent agents. It was also argued by the petitioner, party-in-person that the impugned amendment violates Articles 14, 19 (1) (g) and 21 of the Constitution and the amendment is also not beneficial to the interest of the common people and the country.

It is an admitted fact that the respondents and their officers are virtually passing orders and the patent agents are not the deciding authorities in the matter relating to Patents Act. Hence, it is the prerogative of the parties or clients to engage their patent agents, prior to the amendment, either an advocate functioning as patent agent or the other category of patent agent. However, by amending Section 126 (1) (c) (i) of the Act, deleting the term “Advocate, within the meaning of Advocates Act, 1961″, the respondents have made it mandatory on the part of the parties or litigants not to engage advocates as patent agents, which is beyond the purview of the respondents and also against Section 30 of the Advocates Act, relating to legal profession.

The petitioner submitted that the respondents, by making the impugned amendment cannot direct any party or litigant, in the matter relating to Patents Act, not to engage advocate, as patent agent, as the same would not come under the purview or authority of the respondents. It is the right and privilege of any party or litigant to engage a professionally qualified person to defend his case.

It was also contended that science is like an ocean. 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. It is also brought to the notice of this Court that advocates having basic degree in Arts or Commerce are not even eligible to appear for the Examination conducted by the respondents, on the ground that they are not degree holders of Science, Engineering or Technology. Similarly, advocate, who had already registered as patent agents, prior to the amendment are eligible, however the other Advocates, who are yet to be registered as patent agents are not permitted, which is also a discrimination and anomaly in taking such a stand, there is no ‘rationalia’ available to support the case of the respondents, to justify the impugned amendment.

The Court observed that the view of eminent Jurist and great academicians is that “law is a social science” and a practicing lawyer is a social engineer. When such is the view of Courts and eminent Jurists, the respondents are not entitled to take a decision mechanically, that law is not a science and that graduates in science, engineering or technology, after passing a Departmental Examination in Patents Act and drafting, conducted by the respondents, they will be better qualified persons than any practicing advocate.

The Court held that B.L., or LL.B., awarded by any recognised university is a degree of social science in law and a practicing lawyer is a social engineer. It is the prerogative of the university to decide the nomenclature of a degree, based on which, the respondents cannot hold that law degree is not a degree in science.

It was also contended that it is an undisputed fact that as per Article 19 (1) (g) of the Constitution, the petitioner being a citizen of India, has the right to practice or carry on his occupation or his profession as Advocate, which cannot be curtailed by the respondent, by any class legislation or unreasonable restriction, though reasonable restriction could be imposed by state or authority, on the exercise of the said right. The work or professional duty of patent agent, as specified under Section 127 of the Patents Act is only a part of the profession of any advocate, hence, the respondents cannot justify the impugned amendment as a reasonable restriction to Article 19 (1) (g) of the Constitution and also not contravening Section 30 of the Advocates Act.

The Court held that it cannot be disputed that a better qualified person for a particular task may constitute a reasonable class than less qualified persons. In the instant case, the respondents cannot say that degree holders in Science, Engineering or Technology, after passing the law examination in patent law and drafting conducted by the respondents would be more qualified than advocates, for deleting sub-section (i) of Section 126 (1) (c) of the Act.

The Court held that it cannot be disputed that a recognised degree, either B.L., or LL.B., which is the required educational to be enrolled as an advocate, is certainly a better qualification than the examination, conducted by the respondents in Patents Act and drafting to register any one as patent agent.

Further, there is no satisfactory reason on the side of the respondents as to why the term “Advocate, within the meaning of Advocates Act, 1961 available under Section 126 (1) (c) (i) of the Act was deleted by the impugned amendment in an unjustifiable manner.

The court held that it is a well settled proposition of law that reasonable classification cannot be construed as violation of Article 14, since equality as contemplated under Article 14, refers to equality among equals or among equally placed persons. However, a better qualified person cannot be rejected by any authority on the pretext of reasonable classification. A class legislation is different from reasonable classification. A class legislation cannot be a defence under Article 14, though reasonable classification is within the purview of Article 14. The term reasonable classification itself reveals the reasonableness or justifiable nature of the classification, otherwise, the same would be a class legislation, which is prohibited under Article 14. In that context, leaving advocates, better qualified persons, the respondents cannot permit lesser qualified persons as a reasonable class, to practice law in respect of drafting, filing and appearing before the first respondent in the name of patent agent, as per Sections 126 and 127 of the Patents Act.

The court held that preventing advocates, better qualified persons and retaining less qualified persons as patent agents, on the basis of the examination conducted by the respondents would not be justified under the pretext of reasonable classification, hence, the impugned amendment is violative of Article 14 of the Constitution, as it is an unreasonable class-legislation.

Learned Senior Standing Counsel appearing for the respondents drew the attention if this Court to the procedure being followed by the Supreme Court regarding “counsel on record” as a separate class for filing of cases in the Apex Court. The court held that the said argument advanced by the standing counsel for the respondents has no merit. In interpreting law, the respondents can no way be compared with the Supreme Court, in view of Article 141 of the Constitution, since an order or Judgment rendered by the Hon’ble Supreme Court is the law declared by the Supreme Court and the same is binding on all courts and authorities in the territory of India and further, among the advocates, by a competitive examination, the counsel on record are selected by the Supreme Court.

Therefore, the advocates on record are selected by way of examination conducted among advocates, hence, the same would create reasonable classification among advocates.

So far as the impugned amendment, pertaining to Patent Act is concerned, it has deleted the advocates, a batter qualified law knowing persons, merely by conducting some departmental examination in Patents Act, Patent Rules and drafting. The respondents selecting certain group of persons to register as patent agents, deleting advocates, more qualified persons, would be unreasonable and against the larger interest of the general public.

The court also observed that it can also take judicial notice that if any lawyer is permitted to register as patent agent, he may directly challenge any order passed by the respondents or any other officers subordinate to the respondents, in case the order is contrary to law, however, persons selected by the respondents, on the syllabus prescribed and the examination conducted by the respondents and also appointed by them, the respondents would have professional control over the said patent agents and normally they would be amenable to the authorities under the Patents Act and that would not beneficial to the larger interest of the pubic and that may likely to increase corruption.

The learned Judge observed “I am of the considered view that deleting sub-clause (i) to section 126 (1) (c) of Patents Act, by way of the impugned amendment, whereby preventing advocates from becoming patent agents, would be against the mandate of Article 14, on the ground that the same is against equality before law and equal protection of law, as unreasonable class-legislation”.

The Hon’ble Supreme Court in Dharam Dutt vs. Union of India, has held that fundamental rights guaranteed under Article 19 (1) (g) of the Constitution cannot be taken away by legislation, though the said right is subject to any reasonable restriction. Preventing advocates, who are better qualified persons, ignoring the ground reality that conducting law examination in Patents Act and drafting by the respondents would not make the other group of patent agents as better qualified persons than advocates to register themselves as patent agents. The said amendment would create only a monopoly of certain group of persons, who are amenable to the authorities in the name of patent agents under the Act.

The Court also held that it is the prerogative of the parties or litigants in the matter relating to Patents Act in respect of engaging patent agents. Prior to the amendment, either an advocate registered as patent agent or other category of patent agents, registered themselves, based on the examination conducted by the respondents as their patent agents. However, deleting the term “Advocate” by way of the impugned amendment to Section 126 of the Act, the parties or litigants should necessarily engage their patent agent only in the said second category and not the advocate, since an advocate cannot register as patent agent, after the amendment, as a matter of right.

As a matter of fact, prior to the impugned amendment, the parties / litigants were at liberty to engage any advocate, who had registered as patent agents, in respect of drafting, preparing, filing and appearing before the authorities. It is the right or privilege of the litigants or parties to engage any patent agent, either an advocate, who has registered himself as patent agent or the other category, by way of amendment, the respondents cannot create a monopoly against the Advocates Act.

It cannot be disputed that in respect of legal practice, the competent supervising machinery or authority is only the Bar Council and as per Section 30 of Advocates Act, an advocate is entitled to appear before any Court, including the Supreme Court, Tribunals and other authorities, such right of an advocate cannot be tampered with by the respondents, in the name of patent agent. Advocates, being law graduates doing part of their work in respect of drafting, preparing documents, filing and appearing before the authorities, apart from arguing cases before Courts are comparatively better qualified persons than the other category of patent agents. Hence, by way of the impugned amendment, the respondents cannot delete the term Advocate and make restrictions to the advocates to register their name as patent agents. There is no acceptable reason assigned by the respondents for deleting the word, Advocate, within the meaning of Advocates Act, 1961″ by way of the impugned amendment. The impugned amendment is not based on any reasonable restriction but only an unreasonable restriction, contravenes Article 19 (1) (g) of the Constitution, hence, inthe light of various decisions rendered by the Hon’ble Supreme Court, it has to be held that the impugned amendment is violative of Article 19 (1) (g) of the Constitution. The learned Judge also observed “I am of the considered view that the impugned amendment, curtailing the rights of the petitioner and the other advocates is against the mandate of Article 21 of the Constitution, in view of the class-legislation and the unreasonable restriction made, by way of amendment in the Patents Act”.

The other limb of argument advanced by Mr.S.Udayakumar, learned Standing Counsel appearing for the respondents is that India is a party to various international treaties, hence, it necessitated the respondents to make the impugned amendment, whereby the term advocate, within the meaning of Advocates Act, 1961, under Section 126 (1) (c) (i) of the Act was deleted. The aforesaid contention of the respondents was not supported by any material and further, the said argument cannot be accepted, on the ground that the sovereignty and the constitutional supremacy cannot be diluted by raising a plea of International contracts with other countries. Constitution is the supreme law of the land and fundamental rights have utmost importance and such rights were not conferred by Parliament or the Judiciary or even the Constitution. As  per the preamble of the Constitution, it has been made clear that the people of India, while resolving to constitute India, a sovereign, secular, democratic, republic, have retained certain unalienable basic rights, which are fundamental to any citizen, in a civilized country and the Judiciary is the custodian and watchdog of such fundamental rights, retained by the people. Therefore, the respondents are not entitled to enter into any treaty or contract with any other country, violating such fundamental rights. Similarly, 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, as the same would be against the sovereignty of our country. In the aforesaid circumstances, without any materials, the respondents cannot advance their plea that the impugned amendment was made, in view of international treaties and convention, whereby deleted the term advocate, within the meaning of Advocates Act, 1961, under sub-clause (i) of section 126 (1) (c) of the Patents Act, as the same would create monopoly to certain group of persons, selected by them.

The learned Judge held that the impugned amendment is against Articles 14, 19 (1) (g) and 21 of the Constitution and also against public interest, accordingly, the same is liable to be struck down, as unconstitutional. However, the relief sought for in the writ petition is to declare that the amendment introduced to Section 126 of the Patents Act, 1970, by Section 67 (a) of the Patents (Amendment) Act, 2005 (Act 15 of 2005)  as illegal, unconstitutional, ultra vires and void.

The Court declared that the impugned amendment introduced to Section 126 of the Patents Act 1970, by Section 67 (a) of the Patents (Amendment) Act, 2005 (Act 15 of 2005) as illegal, unconstitutional, ultra vires, void and unenforceable.

Ms. Anvita Singh v Union of India, WP (C) No.4376/2011

Ms. Anvita Singh v Union of India, WP (C) No.43762011The 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.The 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.

Indian Lawyers Can Be Patent Agents Under Indian Patents Act 1970 Without Passing The Patent Agent Exam

Indian Lawyers Can Be Patent Agents Under Indian Patents Act 1970 Without Passing The Patent Agent ExamIn 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.

International Law, Indian Sovereignty And Constitutional Protections In India

International Law, Indian Sovereignty And Constitutional Protections In IndiaWhat is the true nature and character of international law vis-à-vis Indian sovereignty and constitutional protections? This is a tricky issue and has not been discussed by our Indian judiciary. However, the issue is too important to be ignored any more by our judiciary and Indian government.

We have discussed this issued in the year 2005 and now we are once again discussing the same. The crux of this work is that every international law, to be valid and constitutionally sound in India, must be tested on the touchstone of Indian constitution. This is so because there is a great difference between international law and national law, especially the one that is enacted within the framework of Indian constitution.

Any international law that is in violation of Indian constitution would cease to operate to that extent in India. This is so even if the parliament of India has enacted a law based upon such international law. The reason for this is that no law, whether national or international, can be in derogation of Indian constitution.

Before proceeding further, we must differentiate between private international law and public international law. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “private international law”.

An important aspect of the private international law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States.

The “public international law” on the other hand primarily encompasses within its ambit the treaties and conventions which are required to be uniformly followed by the “member countries”

The term “international law” is synonymously used for the term “public international law”. It is different from “private international law” that is a law of different States. The rules of private international law have been formulated to avoid conflicts that arise due to conflicting laws of different States. The public and private international law differs in many crucial aspects that primarily decide which law will govern the situation. The chances of “sovereignty clash” are more in case of private international law as compared to its counterpart.

The following differences between private international law and public international law are worth noticing:

(1) Subjects: The public international law primarily deals with the States and to some extent with the individuals; Private International Law primarily deals with the individuals of two States.

(2) Scope: The rules of private international law are made by the concerned sovereign State whereas it is not so in case of public international law.

(3) Applicability: The public international law is applied uniformly to all States with few concessions attached to it whereas private international law differs from State to State.

(4) Source of Law: The public international law is formulated through the mode of Treaties and Conventions whereas the private international law is formulated by the legislature of the sovereign States.

As a general rule the public international law is usually used to give effect to municipal laws of a State but there may be occasions where private international law may become rules of public international law. This happens when the rules of private international law are incorporated in the international treaties.

One of the most controversial issues that has long been debated and on which the opinions of the jurists and legal scholars are sharply divided concerns the status of International law. One view is that international law is not a true law but has a moral and persuasive value only. The other view is that international law is a true law, and it is to be regarded as law in the same way as that of ordinary law of a State which is binding upon the individuals.

The former view seems to be more practical and appropriate for the present regime of international law. This is so because if the international law binds all the member States there should not be any “hegemonic superiority” in favour of any particular State. This is unfortunately the present trend of international law.

The online gambling trade dispute brought by Antigua against the United States (United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS285) (“US-Gambling”), proves this point.

In this case, the Dispute Settlement Body of the World Trade Organisation (WTO) authorised the small, Caribbean country of Antigua and Barbuda (Antigua) to suspend its obligations regarding American intellectual property rights. As a result, the Government of Antigua and Barbuda will be able to authorize the sale of products of innocent holders of copyrights, trademarks and other important intellectual property rights, free of those legal protections.

There are instances of “express violations” by the “developed nations” who are holding the prominent position there. There is neither any “sanction” nor any “remedy” against such violations. It is true that State laws are equally violated but then we have a remedy for the same and the “double standards” that are prevailing in the international law are missing in such violations. In the case of violation of municipal laws there is a single sovereign who enforces the rights against such violations. So much so that even that “sovereign” is also made “accountable” for the wrongs committed by it. Thus the concepts of sanction, enforcement and accountability are not missing in municipal laws unlike international laws. The biggest threat to the existence of international law is the patent adoption of “double standards”. The rules of international laws are “twisted” and “molded” as per the requirements of the concerned State. The civil liberties in cyberspace are violated on large scale by the very propounder and advocates of these rights; the countries are invaded under the garb of terrorism even against the wishes of the members constituting the agency, the environment is degraded to an intolerable limit and the rules of international laws are not followed uniformly. Thus, instead of adopting the common standards, the standards suiting the requirements of developed nations are adopted.

It would be sufficient to say that international law is law till the States “consider” it as law. As compared to municipal law it is definitely weak even if the same is accepted as a law by the concerned State. The rules framed in various treaties and conventions are so formulated so as to give wide range of options to the States. This happens because certain “privileges”, “flexibilities” and “exceptions” are created in favour of both the “developed” and the “developing” nations.

The developed nations use certain “prerogatives” that are not available to developing nations whereas the developing countries bargains certain “flexibilities” in their favour that slows down the progress of the “harmonisation process”. In short, both developed and developing countries use the rules of international laws for their own benefits.

Further, due to lack of adequate sanctions these rules are often deviated from by the “strong and superior States”. At times it becomes almost impossible to compel these “strong and superior” States for the observance of rules of international law. Thus, international law largely remains a “personal domain” of the member States where the ultimate result is governed by “diplomacy and might” and not by agreed common rules and regulations.

As far as India is concerned, even after an international law has been incorporated into legislation it must satisfy the mandates of the Constitution of India. Till then it has a mere “moral significance” and “persuasive value”.

International laws has to be judged on an “individual transaction basis” and not on “universal” basis because for the same transaction and event States act differently. Thus, while one State prefers to abide by its rules whereas the other may act in a flagrant violation of the same that cannot be justified either by the international law itself or by a humanitarian behaviour.

The only good thing about the international law is that at times it is used by courts to give a “purposive and updating” interpretation to the existing provisions of the municipal law. The same, however, by and large remains a “moral charter” only.

Indian Constitution, International Treaties And The Mandates Of WTO

 By
Geeta Dalal

When a nation accepts any international treaty or convention, it partly accepts to surrender a part of its autonomy. However, on no case it must be presumed that the nation has surrendered its sovereignty and constitutional safeguards.
When a law is enacted in a particular country it is mostly based upon its social, economic, and political ideologies and notions. Obviously these ideologies and notions vary from nation to nation and are essentially different in various societies. This is the main reason why we face a “conflict of laws” as laws of two sovereign nations conflict with each other.
At the international level, this situation is generally taken care of by the “private international law”. Nations try to reconcile the two conflicting law and apply the same to the given situation in most appropriate manner.
An important aspect of the private international law is that it is territorial oriented and society specific. Thus, the law of the country in question prevails, if there is a conflict between the two laws of the different sovereign nations.
On the other hand, we have the “public international law” that is based upon international harmonisation principle. Nations across the world try to be part of a process where a harmonised international law is accepted as a base model for formulating national laws. This way conflict among laws of various nations can be minimised.
The treaties and conventions entered under the banner of a common platform like World Trade Organisation (WTO) bind these “member countries” and they cannot plead that the same is against the notions and ideologies of their nation. That is why countries are very cautious while entering into various treaties and conventions.
However, in no case such treaties and conventions can take away the constitutional rights and sovereign functions of a nation. For instance, under the WTO it is not allowed to discriminate among member nation’s goods and services. However, there are some well established exceptions to this rule.
For instance, India has recently allowed preferential market access to indigenously manufactured telecom equipments of India. India has justified its preferential market access (PMA) policy for domestic telecom equipments manufacturers due to telecom security concerns. Thus, no nations would comply with its international obligations to compromise its national security and sovereignty.
Another example in this regard can be found in the form of pharmaceutical companies business in India. Recently Novartis lost the patent claims of Novartis AG’s cancer treatment drug Glivec in Supreme Court of India. The Supreme Court of India held that Novartis product is not patentable in India as per Indian Patent Act, 1970. Similarly,  US pharmaceutical company Merck Sharp and Dohme’s (MSD) appealed before division bench of Delhi High Court when a single Judge of Delhi High Court refused to restrain an Indian firm Glenmark from manufacturing and selling anti-diabetes drugs Zita and Zita-Met through an interim order. Both these cases reaffirm the public interest aspect of pharmaceutical business segment in India.
The treaties and conventions entered at the international level are not automatically incorporated in the “municipal legal system”, though some countries endorse the concept of “automatic incorporation” of the same.
In India, we have to take an independent action of “legislation” under article 253 of the Constitution of India to make the treaties and conventions functional. This shows the legislative superiority of Parliament over the respective States.
This is the reason why the Madrid protocol was not applicable to India till now. The International registration of trademarks under Madrid Agreement and Madrid Protocolhas attracted the attention of international companies and trademark stakeholders.  However, the Madrid Agreement and Madrid Protocol and its applicability and implementation in India were long due.
It is only now that India submitted instrument of accession to the Madrid protocol for international registration of marks. The treaty will enter into force with respect to India on July 8, 2013.
There is nothing wrong if India keeps in mind the public interest element while implementing the international treaty and conventions principles in its municipal legislations. Otherwise, India courts would always maintain the balance by giving Indian sovereignty and constitution precedence over the conflicting international treaty and convention.

Bar-Coding Of Primary Level Packaging Of Export Consignment Of Pharmaceuticals And Drugs Deferred By India

The Director General of Foreign Trade of India has the powers under paragraph 2.4 of the Foreign Trade Policy, 2009-14, as amended from time to time, to make necessary amendments in public notices.
One such public notice is the notice number 59(RE-2010)/2009-14 dated 30.06.2011 read with Public Notice No. 10 (RE-2010)/2009-2014 dated 11.07.2012 that prescribed the condition of bar coding of Primary level packaging for export consignment of pharmaceuticals and drugs for tracing and tracking purpose.
Indian bar coding requirements have come into force on 1st January 2013 after the government rejected appeals for another postponement. The legal effect of this notification is that the packaging of any finished drug products manufactured for export after January 1 2013 must feature a barcode.
The intention was to incorporate 2D GS1-compliant datamatrix barcodes on the strip/vial/bottle level that will include a unique product identification code (GTIN), batch number, expiry date and serial number.
According to the previous notice, the requirement of affixing barcodes on Primary Level packaging was to take effect from 01.07.2013. Now this date has been deferred to 01.07.2014.
The same has been done through an amending Public Notice No. 54 (RE-2012)/2009-2014, New Delhi, Dated the 5th April, 2013. This deferment would give Indian pharmaceutical manufacturers more time to comply with the requirements for primary packaging, which is by far the most challenging aspect of the track-and-trace elements of the new regulation.