The Madras High Court in it’s decision today has struck down the requirements for agents filing patent applications before the patent office. Hat Tip: Our regular reader, SP Chocaklingam, and the petitioner in the case. The case was filed in the year 2006 and a decision came out today. The crux of the judgment / order is that all Advocates as a matter of right can file patent applications for their clients, and they do not have to register themselves as patent agent with the patent office. This basically ensures that the requirement of science, engineering, or technology from any university is done away with.
Interestingly, the government argued that the science, technology background was mandated under TRIPS requirements. This is a strange paradox: Elsewhere the government is trying to stretch TRIPS requirement or argue that something is not mandated by TRIPS – however in this case they argue requirements to be TRIPS compliant!!!
The petitioner argued that the amendment to section 126 omitting “advocates” from it’s ambit was unconstitutional. Reference was made to Section 30 of the Advocates Act, read with Articles 19(1)(g), and 21 of the Constitution of India. It was also pointed out that the patents act does not provide any qualifications for being an inventor. And if no qualification was attached to being an inventor – how could there be a qualification for an inventor’s scribe – and there was no application of mind while omitting the word advocates. The petitioner also mentioned that under the current scheme of patents act, advocates were allowed to argue (patent matters) before the Controller, the IPAB, and the High Courts – but were not allowed to draft patent applications for their clients.
The impact of this decision would be huge – as any advocate would be eligible to practice before the patent office. It seems that the patent office may appeal this decision – and we hope to keep our readers abreast of the developments re this issue.
P.S: This post will be edited with our detailed analysis as soon as we receive copies of the judgment / orders.