The Indian Patent Office : Paralysed by Procedural Bottlenecks? (Part II)

(In the first part to this post, I had discussed at length two particularly stubborn maladies that plague the administrative system of the Indian Patent office. In Part Two here, I discuss three more hurdles that obstruct the salubrious functioning of the IPO. The disclaimer stated earlier continues to stand: The posts are representative of the state of affairs during Chaitanya Prasad’s tenure as CGPDTM – we hear that the place has been materially spruced up and affairs brought in order since OP Gupta assumed office in November 2015. I’ve attempted to present a balanced view on the subject and would love for readers to come forward and contribute with any more word they have on this)

DELAY IN PROMOTIONS

While the Patent Office Recruitment Rules deem Patent Examiners who have completed 5 years of service as being eligible for promotion to Assistant Controller of Patents and Designs, it appears that many Group A Gazetted Examiners recruited in 2003, despite having completed 13 (!) years of service, are still awaiting their first promotion. Further, despite the creation of new posts in March 2015, the promotion of the Examiners continues to be delayed, severely affecting the work of the patent office – leading to mounting applications and degrading quality of evaluations. The anonymous letter claims that there has been a deliberate failure to convene the Departmental Promotion Committee (DPC) meetings for the approval of promotions despite there being sufficient posts for Assistant Controllers – largely the reason responsible for the increasing attrition rate of patent examiners.

It goes on to assert that what exacerbates the issue is that when officers – most of whom are highly skilled professionals in the arena of science and technology – having failed to secure their long-due promotion, apply to a different department in the search of better job prospects, the Office of the CCGPDTM has deliberately refrained from forwarding the application.

In his post here, Prashant had earlier covered the issue of delayed promotions – a subject that appears to have struck a chord with a number of our readers, considering the number of comments that expressed collective grief at the dismal state of affairs at the Patent Office. One wonders how the government will ever be able to retain its officers and ensure the systematic functioning of its departments when its employees, heavily impacted by the whimsical ways of lethargic superior officials, continually resign from employment in search of greener pastures.

PROBATION ISSUE

The documents claimed that a total of 253 candidates of those who wrote the DIPP Competitive Exam in 2010 were deemed eligible to serve the Group A, Gazetted Post of Examiner of Patents and Designs , and joined various patent offices between 30/12/11 and 17/1/12. Their service was expected to be confirmed subject to satisfactory performance during their 2 year probation period, during which they were sent for training to the Rajiv Gandhi National Institute of Intellectual Property Management. As of 17/1/14, 237 had completed their probationary period. However, it appears that despite 15 months having passed since the Ministry of Commerce and Industry requested the office of the CGPDTM to send the details of the examiners who made the cut, no documents have been sent, resulting in an outrageously unwarranted delay in the confirmation of their service.

It is interesting to note that the CGPDTM’s inaction has been claimed to be in direct contravention to an office guideline dated 28/8/1998 that states that the decision to confirm probationer or extend probationary period should normally be communicated to him/her within 6-8 weeks. It is also in alleged violation of an office memorandum mandating the expeditious confirmation of services and requiring DPCs to be convened at the earliest to consider confirmation of services of temporary employees. But despite a year and a half having passed since then, no action has been taken – the examiners are still on ‘probation’, their ‘temporary employment’ forcing them to withstand agonizingly long periods of instability, in addition to disentitling them to the benefits conferred on permanent government servants.

CONTRACTUAL RECRUITMENT

It appears that on 9^th October, 2015, an advertisement was put up on the ipindia website inviting applications for 263 vacant posts of Examiners of Patents and Designs on contractual basis for a fixed period of 13 months including one month of training period and a consolidated stipend of Rs. 40000 per month. As the letter highlights, this is problematic for a number of reasons.

First, this is in direct contravention to the recruitment criteria for Examiners of Patents and Designs in accordance with the Recruitment Rules published in the Official Gazette on 5^th September, 2007.

Second, it appears that it is only for the contractual recruits that the usual one year training period has been reduced to one month – the legitimacy behind this decision is one that deserves severe scrutiny.

Next, the advertisement appears to have been released only a few months after a July 2015 advertisement that had been issued for the recruitment of 459 Examiners on a regular basis, for which the selection process had also commenced. In offering recruitment on a contractual basis, based on available information, one might conclude that the office is effectively taking away jobs meant for officers already within the system, in addition to disturbing the existing well established recruitment process without any assurance of career growth.

Further, contractual examiners’ short job tenure and limited scope of work has ensured that they have remained largely relieved of any serious responsibility or accountability – because contractual examiners are expected to issue only the First Examination Report and the case itself is passed on to another examiner in the amended stage, there have been multiple reported instances of deliberate oversight and laxity in the examination of patent applications on the part of contractual examiners. Also, because the second examiner has to handle an application directly at the amended stage, he is required to carry out a denovo examination under Section 13(3). i.e. an otherwise unnecessary re-examination of the application, resulting in huge delay and slow disposal of the matter. This is in stark contrast to the usual practice, which is that the examiner who issues the FER deals with the application until its disposal. An exception is made only where the first Examiner has left/been transferred/promoted – no provision has been made to accommodate the case of contractual examiners.

The IPO’s failure to engage in effective, meaningful manpower planning has resulted in the implementation of a bootless policy which not only does nothing to increase the IPO’s productivity, while ruthlessly desiccating the prospects of regular examiners securing a promotion in the near future– thus merely working to ensure that more and more officers are severely demotivated, resulting in gross inefficiency in the IPO’s functioning, and perennially vacant posts.

The arbitrarily managed and discordantly administered state of affairs at the Indian Patent Office has thus, put at stake the credibility of the patent system in India. Profoundly flawed employee evaluation, transfer, promotion and recruitment policies unwittingly devised by the seemingly indifferent IPO have collectively laid the groundwork for an abysmally deficient system of functioning, leading to the disillusionment of officers trapped within the system and consequent disinterest in their dealings at the IPO.

The existing patent screening mechanism in place is one that is ridden with gaping loopholes that menacingly threaten to progressively and unrelentingly distend until reparatory instruments are put in place. One can only hope that the IPO does itself and the country a favour, and works towards introducing sweeping, transformative changes to its existing policies and functioning methodologies in order to gradually nurse the country’s patent system to a more robust state of health.