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.