Here is the text of the letter for those interested:
Dear Sirs:
I refer you to a blog post that I wrote pertaining to the dire shortage of examiners at the Indian Patent Office. The post can be found here.
I extract the relevant portions of this post:
“A couple of other institutional issues need quick fixing:
Owing to a rather bizarre promotion spree, a number of examiners were promoted as Controllers in the year 2008. This completely skewed the Examiner vs Controller ratio! Leaving the Indian patent office with very few examiners to do the task of primary examination. And naturally our recently promoted controllers refused to step down from their lofty seats and dirty their hands with examination. PH Kurian, the CG then issued an office order mandating Asst Controllers to examine applications as well. This was challenged by some of the Asst Controllers before the CAT (Central Admin Tribunal) and the tribunal stayed the Controllers’ order. It is expected that the government would challenge the CAT order.
As we await a court ruling on this front, I can’t help thinking: why did the IPO get itself into this mess? Why were these sudden promotions made…and that too en masse? Who was behind this? The government (or perhaps the CBI…I smell a rat here) needs to investigate. But in the meantime, the most optimal solution is to appoint more examiners. We believe CSIR will conduct an exam for prospective examiners next January. And the government will then recruit more examiners. One hopes that by next year, the government will find more optimal ways to mentor and train newly appointed examiners. And evolve a clear career graph that they can look forward to, if they perform.”
Assuming that the facts laid out above are correct, could you please clarify the following:
i) Firstly, why there was an en masse promotion, when the government knew that these promotions would result in a severe examiner shortage? I believe that the current number of examiners are 70 and the number of Controllers (including Assistant Controller, Deputy Controllers etc) are around 75 (a ratio of 1: 1.07). This is a highly skewed ratio! An optimal ratio between Examiners: Controllers ought to have been 3:1.
I also believe that the Madras High Court recently dismissed the government challenge against the CAT order mentioned above. The court appears to have held that Asst Controllers cannot be made to do the same job as officers lower in hierarchy to them i.e. examiners. Therefore, the government now appears to have only two options: It can either amend the Patents Act to enable Assistant Controllers to examine. Or it should immediately hire new examiners to fix this shortage crisis.
In the meantime, given the rampant increase in the number of oppositions, more Controllers (Assistant Controllers particularly) must be deployed in the opposition process. In fact, it may be a good idea to fill the post grant opposition board with 3 Assistant Controllers. As of now, I believe that this 3 member board consists of just one Controller and 2 examiners. I hope to send you a separate note on the need to reform the post grant opposition process shortly.
ii) Secondly, could you please clarify why there hasn’t been any additional recruitment of patent examiners for the last two years? I understand that the en masse promotions happened in the year 2008, as a result of which the Examiner to Controller ratio is now 1: 1.07. And that there have been no additional examiner recruitments till date. What caused this delay?
As you can appreciate, this is a matter of public interest and the public are very keen to monitor the working of this important institution.
I would therefore be very grateful if you could respond to this letter.
Thanking you very much, I remain:
Most sincerely yours,
Shamnad Basheer
Excellent initiative Prof Basheer!
lets wait for govt response now.
the delay may have to do with new rules for examiner appt and bringing in CSIR to test on the exam as you pointed out.
mr basheer,
also ask why CSIR is given this task of recruiting. this is a conflict!
Dear Mr. Anonymous,
There is a misunderstanding among many that CSIR is recruiting for Patent Office. I understand from the news reports quoting CG that the patent office has requested for extending CSIR’s expertise in conducting UGC-CSIR NET (JRF) Exam.
CSIR has a wing called HRDG, which takes care CSIR-UGC NET Examination. This unit is also responsible for managing many of the CSIR grants, scholarships etc.
For last two years (higher officials of IPO ‘the Big Shots’), they are coming Delhi going Mumbai on the government expenses, for recruitment …but the result is big zero….. even if they start the recruitment process toady, the first new examiner will be joining the office after one and half year……
Even the supervisor of a very small unorganized sector factory which manufactures gears and nut-bolts would do a better management than these Big Shots.
And if any one who comes on this blog, wants to join patent office as examiner, my advice is……plz don’t spoil your future…..
Following issues should be resolved immediately:
where are the definitions for Asst, deputy, joint, sr. joint controller ??? and what are their job responsibilities ?? no where in the Patents Act their roles were defined.
Only the Patents Act u/s 73 says that Controller means “Controller General P, D & TM” and who has got all the powers of delegation to other officers. No clarity for the definition of “other officers”.
Serious attention required in clarifying the ambiguity terms for smooth functioning of IP office in India ahead.
@Praveen: thanks for clarifying the role of CSIR. we need more educated comments such as this.
@Anon (6.44 pm): yours again is one of the few constructive comments on this theme in a long time. I think you raise very important issues. And the government needs to devise a way of culling out these positions and their responsibilities in a clearer manner.
Please refer to Section 2(2)(a) of Patent Act (under definitions),which defines “Controller” as any officer discharging the “functions of controller” under section 73.
Now it is very clear from section 73(2) that Act makes a sharp distinction between “Examiner” and “other officers”.
Section 73(3) says “subject to the provisions of the act” the “officers appointed under sub-section(2)” shall discharge the “functions” of the “Controller”.
The simple logic is that Examination is not a function of “Controller” (or Controller General).
Controller General can take some advantage of section 73(2)to delegate an Examiner as “Controller”, if it is very essential. But “Controller” to “Examiner” ….. ?
Central Govt. has made appointment to a post called “Examiner” defined in the Act. I understand that the appointments to such positions can only be made by “selection” (not by delegation, promotion or demotion).
CG’s order lacks sufficient application of mind ?
I would like to put in my opinion for one issue that is being raised by some people and that is about the role of the CSIR in the recruitment process of examiners. First of all, the CSIR is a publicly funded institution set up in public interest and therefore all its activities including patents are being used for the benefit of the people of India. Therefore the only vested interest of the CSIR is public interest and nothing otherwise should be seen into it. If India has to become a great nation it needs more public investment in research, development and IPR. All developed and seriously interested in development nations (e.g. China) have massive government R&D infrastructure and corresponding IP protection administrations and India also needs to increase the role of its chief civilian and defence R&D organizations like CSIR & DRDO not only in R&D but also in IP protection administration.
Good point Praveen,
But I’m not so sure that the legal position you articulate is so tenable as to label the CG’s order as an insufficient application of mind.
Lets look at section 73 very closely. I reproduce it in full so that its easier for us to refer:
“(1) The Controller General of Patents, Designs and Trade Marks appointed under sub-section (1) of 1[section 3 of the Trade Marks Act, 1999] shall be the Controller of Patents for the purposes of this Act.
(2) For the purposes of this Act the Central Government may appoint as many examiners and other officers and with such designations as it thinks fit.
(3) Subject to the provisions of this Act, the officers appointed under sub-section (2) shall discharge under the superintendence and directions of the Controller such functions of the Controller under this Act as he may, from time to time, by general or special order in writing, authorise them to discharge.
(4) Without prejudice to the generality of the provisions of sub-section (3), the Controller may, by order in writing and for reasons to be recorded therein withdraw any matter pending before an officer appointed under sub-section (2) and deal with such matter himself either de novo or from the stage it was so withdrawn or transfer the same to another officer appointed under sub-section (2) who may, subject to special directions in the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.”
Now section 73 (2) states that the “Central Government may appoint as many examiners and other officers and with such designations as it thinks fit.”
From this, I would infer that an “examiner” is also an “officer”. (since the term used is “other officers). If this were not the case, it would result in an anomaly. Under section 73 (4), the Controller may transfer matters etc…and it will be paradoxical that he can transfer matters only of Controllers and not of examiners. Therefore one might argue that “examiners” ought to qualify as “officers”.
The above legal interpretation notwithstanding, it struck me that the current CG has virtually unbridled powers to organise the functioning of his office by asking anyone to discharge whatever function that he may wish to delegate. The only curb on this is the Central Government power that may designate officers and their powers. The Central Government therefore needs to step in and articulate a better structure for officers, hierarchies and functions.
I agree that “Examiner” also is an officer under the control of CG.
But Section 73(3) says – “Subject to the provisions of this Act”, the officers appointed under sub-section (2) shall discharge under the superintendence and directions of the Controller “such functions of the Controller” under this Act as he may, from time to time, by general or special order in writing, authorise them to discharge.
Now the question is – subject to other provisions of Act, can “examination” be considered as a function of Controller General (Controller) ?
Since the Act does not entrust the “Controller” with the power to do the “Examination” job, how can it be delegated ?
CG can assign (not delegate) the Examination job to any of the Examiner, but not to a Controller.
There is no bar to delegate “his functions” to any of the Officers including Examiner.
Recent CAT judgement against CG (govt of india) is totally flawed one. CAT judge had never applied his mind to section 73 of the Act which is the main basis for the CG’s order. He has mainly relied on natural judgement of discrimination or degradation of post without any relation to section 73 provision of the Act.
Main question is who has defined the posts of Asst to Sr Jt controller and what is its basis ??????
Hope atleast good judgement prevails in the future course of actions resulting in a better structure for officers, hierarchies and functions.
Recent CAT judgement against CG (govt of india) is totally flawed one. CAT judge had never applied his mind to section 73 of the Act which is the main basis for the CG’s order. He has mainly relied on natural judgement of discrimination or degradation of post without any relation to section 73 provision of the Act.
what for section 73 is there ?????
Praveen,
Let me flip your question the other way: is there anything in the Act barring a person other than an “examiner” from examining. Of course not.
Such an issue would normally be decided by looking at express bars. Or by looking at whether there is adequate competence in the authority vested with the new task of assigning. Clearly Controllers are also “competent” to examine.
Which means that, in an exceptional circumstance, even this function of examination can be made the realm of another officer (such as the Controller) under the Act.
Courts are to decide matters in a contextual setting and not in the abstract. The context here is that we have a dire examiner shortage: therefore section 73.2 ought to be interpreted to permit the CG to even ask controllers to examine. Ideally the court should also direct the govt to immediately fill in the slots for new examiner appointments. So this reading is not as “non sensical” (or non application of mind) as you make it to be. It is in fact, a sensible interpretation to address a tricky situation that has arisen. But as I said earlier, this should only be an interim measure. And courts should also direct the immediate appointment of examiners so that the general framework and scheme of the Act is brought back into play.
excellent and perfectly true article by basheer
thanks
CSIR is taking Rs. 4 CRORE from the patent office for recruitment…news for all
Dear Shamnad,
Please refer to section 12 of Patent Act.
12. Examination of application
This Section makes it crystal clear that “Examination” is the job of Examiner and the Controller “shall” refer the documents to an examiner for making a report to him.
Now read Section 13 and Section 14 also.
Raj,
I’ll refer you soon to admin law and consti law cases. A governmental authority can be made to undertake tasks that a junior does….however the reverse may not be possible owing to issues of competence. So for eg. i am a professor at NUJS. lets assume that an assistant professor normaly executes an administrative task such as examination tabulation. If there is no assistant professor to do this task, i can be asked to do so. Its an emergency and there is a deficity and the Univ can call on me to perform a function which is not ordinarily mine. Same here. Owing to deificit of examiners, CG can ask Controller to examine. 12, 13 and 14 lay down the regular structure….it only means that there must be a two tiered structure for examination. Someone must examine and someone (controller must review). SO long as this two tiered structure is complied with, there is no statutory breach. A lower controller examines and a higher ranked controller reviews. Period.
One of our sources from the IPO writes as below:
“The proposal from CG was held up in the DIPP and Ministry of Commerce for a while. After this, the Ministry decided to entrust CSIR for conducting the Exam. Then it was assigned to the HRDG of CSIR almost a year back.
There is some delay from the part of CSIR HRDG also. May be because HRDG also is busy with conducting CSIR-UGC Net exams, co-ordinating Assessment of CSIR employees etc.”
Shamnad,
I think there is scope for a detailed post on this.
Act mentions explicitly that the Controller shall refer the case to an Examiner. Given the fact that a statutary provision enojoys superior status over regulatory laws, can it be overturned by executive edicts ?
Of course the posts of Examiner and Controller are statutory. Examiner post is filled by selection process.
Can the competent authority use delegation powers to assign examination job to controller ?
Dear Shamnad,
Why have you written letter only to Kurien and bhaskar? You should have forwarded the same letter to PMO, Knowledge commission etc so that the entire issue of anomalies regarding the promotion of these people can be brought out. This promotion appears to be the root cause of all troubles. Was money or some other factor involved in the promotion? Nobody would have heard about such a promotion happening in the entire history of Indian government service.Perhaps a CBI enquiry would solve the problem.
@good agent: wat u said is true. the promoted controllers are still under plan.meaning their posts are not regularized till now and temporary only. why cant the controller general revoke these promotions? it wud be easy for everyone.
Dear Shamnad
Sincerest thanks for the post. Thanks also to various commentors (the insightful and the constructive ones!).
Unfortunately, one point missed by all, is the reason of this delay. There is a very complex (may read wierd, if you so wish) problem in conducting this exam- the issue of defining an eligibility criteria! Till date there has not been a consensus on the ELIGIBILITY of the Patent examiner. In most of the jurisdictions, the eligibility of the ‘Patent Agent/Attorney’ gets extended to the ‘Patent Examiner’. In short, one who can ‘prosecute’ a patent is eligible to ‘examine’ it.
Not so in India…
Owing to its 3 years (B.Scs/BSs), 4 years (B.Techs/BEs, BDSs), 5 years(MBBSs/BAMSs/BHMSs,BUMSs), 3+3 years (B.Sc LLBs) and numerous ‘integrated’ bachelor (Graduate) and/or master degrees (Post Graduate), we cannot arrive at a simple (read single) definition for the eligibility of the examiners for various domains.
A ‘B.Tech’ in Electronics degree (Graduate) might be sufficient for the evaluation of a patent in ‘electronics’, but a B.Sc Biology (or even Microbiology) is generally not considered enough for examining a Patent Application in ‘Microbiology. (Note that ALL B.Sc’s are eligible ‘Patent Agents’)
The panel has yet to arrive at a consensus. Most of the members feel that an M.Sc (a Post Graduate) degree should be a minimum for Examiner. (I am not aware of a single Non-M.Sc examiner in any Patent Office in Fundamental Sciences. In fact, most of the examiners are PhDs. Also, Taking into account the PhD’s India produces, even recruiting PhD’s won’t be a problem for the IPOs!)
On a personal note, I too feel that, a person fit for being an agent, should be given the opportunity to compete for Examiner’s post.
Public Opinion can be called for!!!
Regards
Rarely Anon…
Basheer,
i am interested to know how do you know that the matters raised in your personal letter to the authorities is of “public interest and the public are very keen to monitor the working of this important institution”!
1. what is “public interest”?
2. r u alone the “public”?
3. r u trying to go against the high court/cat? if yes, why don’t u file a case challenging those in supreme court?
4. why are you so aggrieved against the promotion?
5. being a patent agent, i personally feel that we are getting examination report in time. you are neither working in pat office or as an agent! WHAT IS UR INTEREST? How do u become so-called utopian “public”?
ANSWER ALL THESE PLEASE. STAKE HOLDERS ARE KEEN TO SEE YOUR POSITION.
[email protected] pm,
why are you so upset with Prof Basheer raising these issues. Got something to hide? COme out in the open and expose yourself and your colleagues who are so scared now! This office is not your personal property– this is matter of public interest and anyone can comment on it-we all need answers.
this promotion of 40 controllers seemed inocent to me first. but with so many people being scared about hte issue being raised, maybe there is something more to this.. someone should investigate. we need more details. why are so many people scared about shamnad raising this issue?