Patent agent examination: DIPP notifies changes in the patent agent exam rules


Today, the patent office posted on its website, a notification issued by the DIPP on September 25, 2012 prescribing the rules for becoming a patent agent.  This notification is supposedly made in view of a publication in the gazette of India inviting comments.  
“S.O. 2296(E):  Whereas, certain draft rules were published in exercise of the powers conferred by section 159 of the Patents Act, 1970 (39 of 1970), vide notification of the Government of India in Ministry of Industry (Department of Industrial Policy and Promotion), number S.O. 562(E), dated the 16th July, 2012, in the Gazette of India, Extraordinary inviting objections and suggestions from persons likely to be affected thereby before the expiry of a period of fifteen days from the date on which copies of the Gazette containing the notification were made available to the public;”
Our readers would be aware of the decisions of the Delhi High Court in the Anvita Singh case (discussed here) and Renu Bala’ case (discussed here) where the Delhi High Court had directed the DIPP to reduce the weightage given to viva in the patent agent examination.
In these cases, the Delhi High Court (“DHC”) had struck down the minimum 50% weightage given to viva-voce examination.  “Prescribing minimum 50 per cent marks in the interview may not be appropriate …. when the rule mandates securing 60 per cent marks in aggregate in all three papers i.e. two written and one viva-voce test.   This rule  is therefore  arbitrary  and becomes violative of Article 14 of the constitution.  To this extent namely prescribing minimum 50 per cent marks in the viva voce is struck down.  We, however, leave it to the rule making authority to either give less weightage by prescribing lesser minimum marks which should not be more than 25 per cent.”  
The DIPP in the notification has amended the rules as follows: 
In the Patent Rules, 2003, in rule 110,-

(a) in sub-rule (2), against the paper relating to Viva voce, for the figures “100”, the figures “50” shall be substituted;
(b)for sub-rule (3), the following sub-rule shall be substituted, namely:-
“(3) A candidate shall be required to secure a minimum of fifty marks in paper I and Paper II and shall be declared to have passed the examination only, if he obtains an aggregate of sixty per cent of the total marks.”.


The impact of the rule change would be that a candidate now requires a total of 150 [(100+100+50)*60%] in aggregate to pass with a minimum of 50 in the written papers. 
Applying this new rule to the cases of Anvita Singh and Renu Bala, it seems to me that both Anvita Singh and Renu Bala would pass.  Anvita: [(61+72+(40/2)) = 153], and Renu: [71+59+(45/2) = 152.5 ~ 153]. Other candidates who were on the borderline (passed in written but failed in viva) should now reassess their marks and determine a pass / fail.  
I expect that the patent office may issue a revised list of candidates who qualified the patent agent examination 2011 based on this notification, and also issue a notice for the upcoming examination in 2013 soon.  We will inform our readers of the notice/s as soon as they become available.
Rajiv Kr. Choudhry

Rajiv Kr. Choudhry

Rajiv did his engineering from Nagpur University in 2000 in electronics design technology. He has completed his LL.B. from Delhi University, Law Center II in 2006, while working as an engineer at ST Microelectronics in NOIDA. After his LL.B., he went on to The George Washington Univeristy, Washington DC to do his LL.M. in 2007. After his LL.M., he has worked in the US at a prestigious IP law firm based out of Philadelphia. Till 2014, he was Of-Counsel to a Noida based IP law firm where he specialized in advising clients on wireless, telecommunication, and high technology. Rajiv is the founder of Tech Law Associates, a New Delhi based law firm specializing in IP law, with a focus on high - technology, and patent law. His core IP interest areas are the intersection of technology and IP, Indian IP policy, innovation, and telecommunications patents. He is also an inventor with pending applications in machine-to-machine communications domain (WO2015029061).

7 comments.

  1. AvatarAnonymous

    It’s a welcome decision for patent agent exam aspirants because they were eagerly waiting for the rules amendment so that patent agent examination could held soon.

    Reply
  2. AvatarAnonymous

    These rules are made effective from the date of its publication in official gazette i.e. 25 September 2012 and these rules have no retrospective effect. I seriously doubt that Patent Office will issue a revised list of qualified candidates for 2011 patent agent exam.

    Reply
  3. AvatarAnonymous

    Now it is going to be very interesting to see that if Patent office issues a revised list of qualified candidates for 2011 patent agent exam. If they do so then there will be case where the candidates have cleared their patent agent exam under the old rules, but they will be declared fail under new rules. For example: A candidate has scored 52 marks in paper 1, 57 in paper 2 and 80 marks in viva, his total is 189, under old rules he is declared pass. now consider same case under new rules, 52 paper-1, 57 paper-2 and 40 (80/2) viva, now his total is 149, which is less than the required marks (150). therefore under new rules he will be declared fail.Similarly, if a candidate has secured 53 marks in paper-1, 58 in paper-2 and 75 in viva, then his total is 186, under old rule has cleared his exam, now under new rule, his total will be 53 + 58 + 37.5 = 148.5, which is less than the required qualified marks (150). Lets see how patent office is going to handle this situation.

    Reply
  4. AvatarAvi...

    I believe this judgement should help many candidate who have not passed in prior exams because of viva voce. Should thank high court for such a decision. Special thanks to Rajiv for taking up the cases.

    Reply

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