The need to sharpen the legal skills of the IPO


Image from here.
Continuing from Rajiv’s earlier post, on the manner in which some of the assistant patent controllers are passing summary orders without adequate reasoning, I would like to extend the discussion to some of the orders passed in RTI matters especially the order of the G.I. Registry rejecting Sumathi’s appeal against denial of information relating to the ‘basmati’ proceedings. 
To briefly recap the facts of the case, the CPIO had denied all papers pertaining to the ‘opposition’ proceedings against the ‘basmati’ G.I. Application on the grounds that such information pertained to ‘sub-judice’ proceedings. In her appeal, Sumathi had mentioned as one of the grounds of appeal, a decision of the Central Information Commission (CIC) which had clearly stated that ‘sub-judice proceedings’ could not be a ground for denial of information under the RTI Act. The title and the relevant extract of the order were also provided in the appeal. One of the first lessons that they teach you in law school is that the order of a superior court is binding on a lower authority i.e. the doctrine of stare decisis. In case an authority is not following this doctrine, they have to give clear cut reasons for not following the same. In the present appeal however, the hearing officer at the G.I. Registry completely ignores the CIC decision cited by Sumathi. The order itself can be accessed over here. There is simply no mention of the CIC’s decision in the order of the appellate office. In all matters pertaining to the RTI Act, the CIC is the ultimate authority and all of its decisions are binding on the government. On what grounds then can the G.I. Registry ignore these decisions? 
Instead, he violates the most sacrosanct rule of an appellate court i.e. the prohibition against introducing new grounds at the stage of appeal, by denying information on the grounds that “All the oppositions claiming the right in the particular goods and the case pending before the Registrar tribunal is dreadfully sensitive involving rights of citizen. In event if it is disclosed in public will prejudicially affect the sovereign and integrity of our nation and distress the security of the state, strategic or economic interest of our nation, as well as have an upshot on the conduct of International relations. Hence the denial of information by CPIO is correct…”. 
Reading this order, one would think that Sumathi had asked for information relating to the location of nuclear missiles along the Pakistan border. In reality all she had asked for is information relating to the ‘basmati’ G.I. opposition proceedings. By what stretch of imagination will the disclosure of documents relating to a ‘basmati’ G.I. application, in which there is only one opposition from Pakistan “prejudicially affect the sovereign and integrity of our nation and distress the security of the state, strategic or economic interest of our nation, as well as have an upshot on the conduct of international relations”. 
If this is the quality of orders in relatively simple RTI matters, how do we expect these officers to adjudicate the more complicated cases involving actual questions of IP law? This problem does not pertain to one officer or one registry. To me the problem appears to be the lack of adequate training. Legal writing and reasoning are not the toughest of skills to acquire but they are still skills that are required to be taught and learnt. From what I’ve heard the officers of the IPO, most often learn on the job without any formal training. This has changed in the recent past with the newly recruited patent examiners being formally trained at the NIIPM. It may be time to organize similar intensive training seminars for the older officers who have not undergone such training programs in their younger days.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

2 comments.

  1. AvatarAnonymous

    It has been noticed that in our country (I do not think it is in other countries as well) that those people are given the job of drafting the laws who do not have any practical experience. The result is that many practical problems creep in. Employees are put on such a post, that he/she does not know what in fact he has to do. He/she would not be knowing the intricacies of the job that he/she has been put into. Every employee, be it in any post with any kind of power is using it more than what the power has been given. Such kinds of procedures are adopted which are unheard of or unwarranted and are suddenly implemented, creating hindrances in the smooth functioning of the offices.
    TM Office has now suddenly started asking for the Enrolment Numbers of the advocates and Code numbers of Agents to be mentioned in the TM-48 as well as Mobile numbers. This asking for the Enrolment Numbers and Agent Code numbers and Mobile numbers is not in the prescribed format of TM-48. Besides, one may not be willing to share his/her mobile number to General Public (as now-a-days the Office is digitizing the papers and digitization of the mobile number would make it public). Besides one may not have a mobile number at all. But then the officials say that even a peon or a sweeper has mobile. Is this the answer?
    TM Office has now stopped giving the time for opposition in an adjourned matter which is creating chaos. In opposition matter there are two parties and both should know what time the case is likely to be taken up. Why this practice has been given a go bye is not understood, except that the officials want to harass the people.

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  2. AvatarAnonymous

    mr anoymous is right, as there is no provision under the Act and rule and/or any notification issued by the trade marks registry, which make it mandatory to mention the personal informations of the advocate in the documents, those can be access by the general public at any time, without seeking perior permission of concerned advocate.

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