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.