Going through some of the file wrappers of Dr. Wobben’s patents (currently under challenge by Enercon India) I came across the Power of Attorney that Dr. Aloys Wobben had made out in the name of his Indian patent agents empowering them to take all steps to prosecute the patent applications before the patent office. The PoA can be accessed over here. Very interestingly below his signature, there was a statement stating that there was no requirement of notarization of the said power of attorney. How then do we know that the real Dr. Wobben actually signed that document? Image from here.
The statement on the PoA that notarization is not required is technically true because surprisingly the Patent Rules, 2003 governing procedure to be followed before the Patent Office does not require patent applicants to supply any notarized documents save for assignment deeds or affidavits. This is pretty shocking because when the Patent Office is handing out million dollar property rights it should at the very least require applicants to notarize some basic documents such as the Power of Attorney, the Proof of Inventor-ship etc.
Notarization basically requires a person to present himself before a public notary (who is vested with such powers by the Central Government) who will stamp the document will his seal after verifying that the person signing the particular document is indeed the person whom he claims to be. The notarization of PoAs are usually compulsory for large financial transactions such as land deals etc. After all the government needs to authenticate the identity of persons and notarization is the best way of authenticating the identity of a person.
Although the Patent Rules, 2003 and the Power of Attorney Act, 1882 do not require notarization of the PoAs being submitted to the patent office, the lack of notarization is bound to become an issue in any future litigation. The reason for this can be found in Section 85 of the Evidence Act, 1872 which states that any power of attorney so authenticated before a public notary is presumed to be genuine. A presumption in favour of the document saves the patentee the trouble of proving it as the onus is on the opposite party to disprove it. At the most the patentee may need to get in a rebuttal witness.
I think you miss the point here.
A power of attorney is a document that initiates the relation of principal and agent between the parties.
As is clear from the document, the document is being called a “power of attorney” but is in fact akin to a “vakalatnama”. This, in my opinion is the reason why the document is optionally required to be notarized.
@loveoflaw: I think you’ve missed the point not me.
Hi..
Are we not considering the ‘franking’ of the POA? It is required to be franked. I believe that the required denomination (rs 100) should be franked on this document, which I could not see on Aloy’s POA. But I agree with the author. Rather making it optional, the POAs should be notarized.
Regards,
S
Prashant,
Legally speaking, by that logic of the verification of the person being physically present in front of a notary, even Form 1 which are signed by the inventors and are construed as assignments from the inventor to the Applicant should also be notarized. Although I appreciate your point, but convenience and practicality also has to play a role as the underlying agenda is to get valid IP rights from technical perspective.
Further, I have many times seen Indian Law firms getting the documents such as assignment deeds signed in original by International applicants and getting these documents notarized here in India by Indian Notaries. What sense does that make then?
Tarun Khurana
FYI. Developed countries got away with POA.
POA is filed at the PO authorizing the patent agent. Why should this POA used for litigation in the court. Obviously, Plaintiff will be filing his plaint supported by an affidavit which will be notarized.
(BTW You can get any thing notarized by a notary APPOINTED BY THE GOVT at the cost of Rs.50/-)
Not making notarazation essential, does raise a question over the authenticity of the document. However, in case of foriegn applicants inclusion of such requirements would only create inconvenience in seeking IP protection.
Notary is for the purpose of authenticity of the signatures contained in the document. Notary of a Power of Attorney although has not been mandatory in the Patents Rules, 2003 or the Power of Attorneys Act, 1882 or the Evidence Act, 1872, but Section 33 of the Registration Act which classifies the Power the Attorney’s which shall alone be recognized in the court of law, specifies that in cases where the Principal resides outside the territory of India the power of attorney has to be executed before and authenticated by a Notary Public, and for the sake of convenience the legislature has incorporated such provision. Whereas authentication by registrar has been made compulsory for the people who reside in India at the time of execution of such document, but for the sake of equity a balance is sought to be obtained for safeguarding the authenticity of the document as well as giving due regard to the convenience of the people not residing in India in enacting such a provision. And such being the only mode to enhance authenticity of the document International Applicants get these documents notarized in India, and in the absence of such it is impossible to ascertain the veracity of the document.
Abhishek Bansal