These are all interesting issues with no immediate answers. However, what of patent officials at the IPO? What kind of qualifications ought they to have? Only a science/technical degree? Or a law degree as well? Right now, the only qualification appears to be a technical degree. And an interview. Apparently, this is set to change next year, as prospective entrants to the Indian patent office (IPO) would need to write an exam as well. And the exam will be framed and conducted by CSIR (India’s largest public funded patentee).
I’m not sure what form the CSIR exam would take. But one question that I wish to raise for now: shouldn’t prospective entrants to the Indian Patent Office (IPO) be subjected to the patent agent exam as well? Should they not know the Patents Act and Rules prior to be being appointed?
Another serious issue that needs to be debated:
Should prospective entrants to the IPO have a law degree? Or is it enough if they have some basic idea of the law (tested through the patent agent exam) ….perhaps they could be trained on other aspects of the law subsequent to their appointment? Here again, does the Indian patent agent exam test on principles of administrative law (audi alteram partem etc) that patent officials need to be conversant with?
Prashant has forcefully argued that since patent opposition disputes represent a “judicial” function for the most part, one must ensure that Controllers deciding such disputes have legal competence, and more importantly, that the process is sufficiently free of ‘executive” (read “government”) interference.
But does not the ordinary process of a patent grant (sans an opposition) qualify as a quasi judicial function? In other words, the grant of a patent can often be said to constitute a mixed question of law and fact (the facts often turning on scientific/technical issues). In fact, courts have time and again stressed that “obviousness”, the central tenet of patent law is really an issue of “law”, predicated on underlying facts. If this be the case, the ordinary controller deciding an application (even in the absence of any oppositions) is really deciding an issue of law.
However, there is no requirement under the Patents Act that such officials have a law degree. Or no requirement that, at the very least, such an official be trained in the law subsequent to his/her appointment.
Lastly, on the issue of “judicial” independence from the executive, and the need to keep patent oppositions free from “executive” influence referred to earlier, one might extend the same logic to the ordinary grant process that does not involve any oppositions. How does one ensure that a government lab such as CSIR (one of India’s largest patentees) not get favourable treatment from a patent office that is, for the most part, under the control and direction of the government? We need more constitutional lawyers to step into the arena and help us with these issues.