Sec. 144 & Patent Rules challenged, Delhi High Court asks Centre to reply

The Delhi High Court yesterday issued notice in a Public Interest Litigation filed by our very own Prof. Shamnad Basheer, on the denial of requests for information under the Right to Information Act (RTI Act) by the Indian Patent Office (IPO). (See also: news reports carried by Mint, ET, LiveLaw, Legally India) 

Readers would recollect the volte-face by the Patent Office in 2012, where they asked Sumathi Chandrasekharan and Prashant Reddy (former SpicyIP bloggers) to pay obnoxious amounts to get files relating to ‘Darjeeling Tea’ G.I application. Since then, the Patent Office has repeatedly insisted on paying fees as per the Patents Rules, rather than the Right to Information (RTI) Act. In December last year, Prof. Basheer filed several applications seeking patent working information on several key pharmaceutical drugs. The responses were absolutely preposterous. The CPIO at New Delhi rejected the application stating that RTI Act is not applicable.  The CPIOs at Mumbai and Kolkata IPOs accepted the application, however, the fees was calculated as per the Patents Act and Rules. The only exception was CPIO at Chennai, who accepted the application and provided information in accordance with the RTI Act.

It is shocking to see how each of the Patent Office are handling information requests in such ad-hoc and inconsistent manner. The Patent Office provided a similar response in 2011 to Prof. Basheer under the RTI Act.

It appears that the Patent Office in Delhi is relying on a decision of the Delhi High Court in Registrar of Companies v. Dharmendra Kumar Garg, which ruled that the RTI Act is inapplicable to information that is already in the public domain by virtue of specific mechanism under other legislation (the Companies Act in this case).

Key differences between the disclosure requirements under the RTI Act and the Patents Act.

Firstly, the Patents Act contains various provisions that regulate disclosure of information to the public, namely, sections 11A (6) (b), 43(2), 72(1) and 153 and their corresponding Rules. These provisions, however, do not cover the entire gambit of patent information. S.144, Patents Act particularly declares that the report of the examiner is confidential and is not open to public inspection or publication. This is contrary to Art. 19(1)(a) and Art 19(1)(g) of the Constitution as it arbitrarily denies access to information without any justifiable reason, especially keeping in mind the social value of the examiner’s report in a patent regime that works on a pre and post-grant opposition system . The Department Related Standing Committee on Commerce of Rajya Sabha itself has decried S. 144 for its lack of public transparency and recommended its repeal. On the other hand, the RTI Act which enables access to any information from public authorities is in line with our constitutional jurisprudence under Art. 19(1)(a) and Art. 21.

Second, the Patents Act and Rules do not stipulate any timeline within which the requested information must be disclosed as opposed to the RTI Act which stipulates a deadline of 30 days.

Thirdly, the Patents Act and Rules have no grievance redressal mechanism unlike the RTI Act, thereby leaving applicants at the mercy of government authorities.

Fourthly, the RTI imposes a fee of Rs. 2/page for obtaining information. The Patents Act and Rules provide no guidelines for the same, resulting in the imposition of exorbitant fees by the IPO. The petition notes that in 2010, the IPO demanded a fees of Rs. 1,04,000/- (One Lakh Four Thousand Rupees) for supplying certified copies of 26 documents, at Rs. 4,000 (Four Thousand Rupees) per document. Estimating that each of these 26 documents had 20 pages each, under the RTI Act, the fees would have been Rs. 1040/- (100 times less than what the IPO charged!). Moreover, various IP rules such as the Designs Rules, Trademark Rules among others impose additional fees for inspection, photocopying and obtaining certified copies of public documents.

Despite the glaring lacunae in the information dispensation mechanism under the Patents Act, it is unfortunate that the Patent Office has unilaterally absolved its obligation under the RTI Act. Moreover, this is contrary to Section 22 of the RTI Act which gives an overriding effect to the RTI Act.  The key question raised in the PIL is whether disclosure mechanisms specified in various legislations enacted prior to the RTI Act override the provisions of the RTI Act and rules made thereunder. The petition argues that the Delhi High Court decision was erroneous in law and contrary to public policy, particularly as the RTI Act was intended to have an overriding effect over any other legislation to the extent of inconsistency between them and ought not to be deemed inapplicable using the general versus specific law argument. The petition asks that sec. 144 be declared unconstitutional & that the RTI act should not be held inapplicable.

The matter came up before the Chief Justice and Justice Jayanth Nath of the Delhi High Court yesterday. The Bench issued notice and asked the  Government’s response by October 29, 2014.

Salman Khurshid (Senior Advocate and Former Minister for Law & Justice) and Joy Basu (Senior Advocate) represented Prof. Basheer pro bono along with briefing counsels Abhimanyu Bhandari (Managing Partner at Axon Partners LLP), Aanchal Mullick (Senior Associate at Axon Partners LLP) and our former contributor Sai Vinod (currently practicing in Delhi). The Union of India is represented by Mr. Amit Mahajan.

[Edit: You can view the petition here]

(This post has been written by L Gopika. I have posted it on her behalf)