Patent Agent Exam 2016 Viva Scores: Revival of the Constitutionality Controversy

The result of the Patent Agent Exam 2016 is out. A total of 123 candidates have failed to qualify the exam owing to the low scores obtained in the viva-voce component of it. These viva scores have once again revived the controversy that the viva requirement of the patent agent exam has been mired in for some years now.

Yesterday, we received some comments on our last post on the Patent Agent Exam, questioning the credibility of the viva process and its scores. The commentators expressed their disappointment over the subjectivity involved in the viva and the lack of a provision for its review. Two of the comments are reproduced below:

What can be the reason for failing in Viva Voce Exam when you knew answers to all the questions asked and know that you have answered them correctly? Is it some personal bias or something else? Is it justified? Is there any mechanism to question the credibility of marks allotted in Viva Exam?

Somebody got 61+50+41 (152 Pass) and 62+50+39 (151 Pass)

But 60+50+18 (128 Fail)

See the miracle of Viva weightage. Same kind of knowledge (as per mark) people gets 40 and 18 how?”

On this blog, we have on more than one occasion, raised objections to the patent viva exam and also called for doing away with this requirement. Prof. Basheer, in his post here, had opined that “the requirement of a viva voce is unconstitutional, inherently subjective and entails significant administrative and other costs. Hence it should be done away with…Alternatively, assuming that the viva is held legally valid in principle, the present structure of the viva [where it accounted for almost 33% of the total marks] is arbitrary and unconstitutional. And should therefore be changed.” These objections were elaborated upon and thrown open for debate on two platforms, CLAM and Debatepedia. In a subsequent post here, Prof. Basheer had urged those aggrieved by the viva scores to challenge the constitutional validity of the viva requirement, mandated by Rule 110 of the Patent Rules, 2003, in the court.

Subsequently, on a writ petition filed by one of the aggrieved candidates, the Delhi High Court struck down the rule stipulating minimum 50% marks in the viva voce as arbitrary and thus violative of Article 14 of the Constitution and left it up to the Patent Office to reduce the weightage of viva marks from 50% to a maximum of 25%. In a later judgment (in the Renu Bala case), the Del HC directed the Govt. to amend the Patent Rules to this effect, within a period of three months. Consequently, the rules were amended by the DIPP, bringing down the total marks for the viva from 100 to 50 and doing away with a minimum marks requirement for the viva. Thus, a candidate at present is required to only obtain a minimum of 50 marks each in Paper I and Paper II and an aggregate of 60% of the total marks (i.e. 250).

However, unfortunately the requirement of a viva voce to qualify the patent agent exam, which has been argued to be unconstitutional irrespective of the weightage allotted to it, still continues to exist. Also, although the total weightage of the viva marks has been reduced from the earlier 33% to 20% of the total marks, it remains way higher than 12%, which has been argued to be the maximum permissible for a viva exam (assuming the viva requirement is constitutional).

The result of the Patent Agent Exam 2016 has again brought to fore the inherent bias and subjectivity involved in the viva exam. Here’s the statistical analysis of this result carried out by Smit Raval, one of the candidates who appeared in the 2016 exam and scored 80 marks (out of 100) in Paper I but only 14 (out of 50) in the viva (of hardly five minutes). This analysis shows that out of the 123 candidates who have failed due to the viva marks, 13 had scored above 70 marks in Paper-I. Since the viva, being short, is meant to be objective and the questions posed are similar to the ones asked in Paper-I, how is it that one who has done well in Paper-I has performed poorly in the viva? It is even more surprising that 10 of these 13 candidates are the ones who appeared at the Mumbai center. Out of a total of 66 candidates who obtained 25 marks or below in the viva exam, 52 are the ones from the Mumbai center. There is also a stark difference between the average viva marks of the candidates at different centers. While the average marks for Nagpur center are 39.96, those for Mumbai center are only 26.57. Is this not sufficiently reflective of the high subjectivity involved in the viva exam? Would this lead to forum shopping? Do we even need this component of the exam that is meant to test only the subject matter competence which is already tested through the two written papers? Does it bear a rational nexus to the object of selecting persons having basic level of competence to file and prosecute patents?

We once again urge the aggrieved candidates to take these issues to the court and challenge the constitutional validity of the very requirement of a viva voce for qualifying as a patent agent and its present scheme of marks.

Thanks to Rajiv for his inputs on this post!

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57 thoughts on “Patent Agent Exam 2016 Viva Scores: Revival of the Constitutionality Controversy”

  1. It’s appeared that candidates who appeared at Mumbai having less marks in the Viva. It is discrimination, i.e. right to equality is denied (guaranteed by the Constitution). Patent office should use a single panel for the Viva.

    1. Abhijit Anant Savadatti

      I totally agree with this point that candidates who appeared at Mumbai centre got very less marks in Viva.

      In addition to Viva, there is a variation in the method of checking the Paper 2 as well.
      Candidates have received too less marks in Paper 2 as compared to their minimum expected marks.

  2. It’s a general observation that the average award of marks for Viva is less in Chennai and Mumbai centers are less when compared to Nagpur, Delhi and Kolkata. Isn’t it injustice ??

  3. Viva is for testing the interpretation skills of the candidates (may be needed in case they qualified as patent agent while facing any client and controllers).

    Rules, Acts, Drafting, Procedure and Forms were already tested in Paper-1 and Paper-2.
    But repeating those again in front of Two Higly Skilled persons in Viva is meaningless. That also with different questions for each (no standard) will not give equal competition and fair chance for all. As I discussed with some candidates, couple of people faced only informal questions and three get only subjective questions like Act, Rules and Forms. And somebody got mixed questions. This is not fair valuation for the candidates who cleared Written exams which has high level of difficulty and strict valuations. Further filtering may not be hardly required. Even in IAS/IPS exams involves such kind of heavy filtration in Interview level.

    This time, 14% only managed to clear Written exams which is very very low as compared to previous histories. This is because of question’s level of difficulty and tight valuations. It is very hard to see some candidates got more than 80 marks in paper-1 and just passed(50 to 55) in Paper-2 and failed because of viva marks 14to25. Whether just passed candidates not successfully qualified in this exam? No because they get 40% and above in viva. Different minded persons in each centers only decides the fate of all candidates. Nearly 3 years of preparation, hard work and dreams has been put in fire because of 3mins viva session.

    So minimum marks in Viva for all of theses candidates might be 40 out of 50, since they has the adequate knowledge to practice as Patent Agent based on Two papers. Remaining 10 marks may be left to prove their level of conversation and interpretation skills.

    Since Act says need of 60% aggregate, the candidates who doesn’t able to qualify (even 40% allotted in Viva), may face hard time and to prove them once again in successive year examination.

    Hence as author said, the candidates must be move to the Court against this results.

    1. Correction: Viva is for testing the interpretation skills of the candidates (may be needed while facing any client and controllers in case by case after qualified as patent agent).

      Even in IAS/IPS exams Doesn’t involves such kind of heavy filtration in Interview level.

      1. This is not the correct way of doing things. It means you are expecting minimum 80% marks in Viva, so that even if you get 110 out of 150, which is less than 60% in the written Exam, you qualify. How convenient is that. Instead of complaining about a process, work harder to get more marks in you written exam. Viva is an essential part of the process to not only check you knowledge about the IP subject but also to check your communication skills when dealing with inventors. The clarity of thought process and the manner in which you convey it.

        1. It is very interesting that candidates of Mumbai center (71 out of 90 who scored less than 50% in viva) have poor communication skills. If you have any secrete method of judging communication skills in just five minutes. Please share it so people can learn from here. Thanks for your valuable inputs.

        2. Dear Anonymous,
          Many candidates got 60%, total of paper 1 and paper 2, However, they got failed due to viva. One candidate got 80 marks in paper 1 and 51 marks in paper 2, here total percentage is more than 65%, though he failed due to viva. What would you like to say about this ?

    2. Minimum Viva marks of 40 out of 50 might be fixed as you said. Otherwise the Government should give the examination conducting rights to Public Service commission like authorities. They know the proper procedure of evaluating a candidate.

    3. Correct, see in Nagpur center that average Viva mark is 40 for all candidates (pass or fail). So that should be kept as minimum mark in all centers. 40 out of 50 is very reasonable.

      1. Because Nagpur is IP institute, they know how to give weightage to the starting level candidates(Patent Agents) as learners. That’s why awarded 40/50 to all.

  4. The viva should be scrapped or their should be a proper pattern that they should follow. My viva lasted less than 5 minutes and I was asked around 8-10 questions. I didn’t know only one answer. Have been marked 33.
    For another person I know, only one examiner was present on the bench. The other one kept stepping out for a break. The one who was present told him he’s one of the few who truly deserves to a patent agent but his score is 26. It is absolutely arbitrary.

    1. I answered for 3 questions correctly against 4 questions in 3 mins viva session. For that one question I Don’t know the answer and frankly told them that I don’t remember. But they awarded me a handful of 18 mearks in Chennai center.

  5. Even qualified Patent Agents will not say correct Act and Rules number, if a sudden question raised in front of them about different part of patent law. They will take a reference and only can tell the Exactly answers. But how the viva session people expects such a bombarding answer from starting level candidates?

    1. The answers key of Paper -1 must be provided to candidates, Patent office must publish the same on their website for all set for paper -1.

  6. I had answered all the questions correctly still I have been awarded 19 marks in Viva in Mumbai office. I knew all the sections and procedures and answered them too. This leaves me in dilemna as to what the examiners were looking for—right answers or people with legal background? I agree with prof. Basheer that the conduct of Viva Exam is unconstitutional in the way it is being conducted and the reason for conducting it is also not justified.

    1. Did you more than 60% in written exam? If not, it means you are relying on Viva to clear your exam and at the same time you are criticizing the process. It is not the right way to look at things. If you cant get 60% in written Exam and want that Viva should be scrapped, as it is you wouldn’t have qualified.

      1. Please check these statistics. These all candidates have appeared for viva at Mumbai Center and have scored more than 60% in written examination. Do you think that these candidates relied on viva for passing Patent agent exam???
        79+50+19=148, and few more…

  7. I am doing patent drafting, filing and opposition formalities on behalf of our company. Till now get 7patents granted from 20 patents filed by myself. The parents getting granted after Examination Reports compliance only. I’m doing it for past 7 years without having Patent Agent certification but with experience.

    Now only attending first PA exam. Expelled Because of Viva. Is I am not eligible to file patents and process? Then how I get patents granted from examiners? Is I don’t know anything about patent works? No other way than laugh at lound.

    1. Did you more than 60% in written exam? If not, it means you are relying on Viva to clear your exam and at the same time you are criticizing the process. It is not the right way to look at things.

      1. Yes in paper 1 I Got more than 60, and you please evaluate my paper-2 by your self if you get a chance. I would get more than 75.

        Paper 2 valuations done at extremely tight. You may check it with all candidates who got pass in final result too.

    2. Look at your English! That itself speaks about your communication skills. Writing is not everything. When you are expected to conduct the business in front of the examiner is this the grammatical input you are gonna give?

  8. I agree that question on discrimination is valid but we need to understand that Agent is supposed to have subjective knowledge.
    Rather criticising viva, I would like if overall format of exam changes.

    candidates who got more than 70 in paper-I and 50-55 in paper-II shows that candidate lacks subjective knowledge. And that to supportted by viva numbers. Apart from examination there should be a proper format for training which should be made mandatory for agents. Possibly training as an examiner which would reduce burden of Patent Office in a way.

    1. Adv. Anil Kulkarni

      Due to change in nature of paper I, which has been now rendered totally objective, and the comparison between marks of Paper I and II, I agree with your opinion. The subjective knowledge of candidates appear to be not so good as compared to objective reasoning. However I disagree that the viva is a solution or measure to gauge their subjective knowledge. I feel that viva should be totally abolished and passing criteria should be 50% in each paper and aggregate 60%.

  9. Adv. Anil Kulkarni

    Earlier on this blog about the subject I have also emphasised for doing away with this subjective parameter for the eligibility of the patent agents. There is no reason for this viva when the knowledge of the candidates is tested in written papers. The analysis carried out by Smit Raval conclusively support the subjective nature of viva vis a vis different centres. The candidates have now started contemplating appearing at Delhi or Nagpur instead of Mumbai.

    Another aspect I have to mention here is I had requested some information under RTI from the Patent Office. I have been informed by the Patent office that the decision in Chocklingam case. The case pertains challenge to the amendment to sec. 126 relating to requirement of Advocates having science, Engineering and technology background for appearing the patent agent exam. The Court had held that the amendment is ultra virus thereby removing the requirement for those advocates to appear the exam. I had also asked whether the said decision has been appealed against and if the court had stayed the decision of the single bench. TO the said question the Patent office has answered that no such stay has been granted. The Controller appears to have challenged the decision before the division bench of the Madras High Court which has not stayed the decision of the single bench. This means as on today the amendment to sec. 126 is ultra virus and therefore there is no requirement of Advocates having science, Engineering and technology background for appearing the patent agent exam. Therefore the Advocates having science, Engineering and technology background should send registration form in form 22 along with the fees for registration and Controller has no reason to reject such applications.

    1. One of the my friend has applied for Registration of Patent Agent who is having Law and Science degree. But Patent office has neither rejected nor accepted that application. They just put all the document in file and taking NO actions.

  10. Candidate with sound knowledge of Law or preferably LLB shall file case in court against Viva marks, especially Mumbai division. In Mumbai office candidates were called at 9 AM & till 5 pm viva not finished, around 20-25 candidates were waiting for viva exam.

    1. I am ready to sign petition for scrapping of viva which is unconstitutional in its nature.
      It should be effected from Patent Agent Examination, 2016.
      As it is, it serves no purpose as the candidate who has qualified the written Exam has already proven his knowledge of Patent law.

      1. HI, Meera we have created WhatsApp Gropp for candidates, my mobile number is 098250 511477, please message me to add you in this group.

        I also request all candidates, please send message on 0 98250 51147; as we are planing to file WP for this issues.

  11. We created a Whats App group for Mumbai center regarding Viva RTI followed by Petition. Kindly send your request to Smit Rawal on 8000428807.

  12. A petition was filed in 2013 as well after the patent agent exam for the same matter. No steps have been taken even after that.

    I failed the exam by 3 marks in the aggregate and feel awful. Viva should be scrapped out for sure, but they seem to not respond to any RTIs or petitions.

  13. I don’t think Viva should be scrutinized in the manner it is being done. If a candidate is good enough to get 150 out of 200 marks (total of Paper I and Paper II) in the written exam, the viva is inconsequential. For the example in the post:
    61+50+41 (152 Pass) and 62+50+39 (151 Pass)
    But 60+50+18 (128 Fail)
    If you were to exclude viva and only consider written exam with the criteria of 60% in total, all of the above would fail. I don’t think relying on Viva to clear your exam and then criticizing the same process is a good way of looking at things. If you are good enough, get your marks in the written exam.

    1. How many of passed candidates scored 60+ in paper 2,??? You check and comment here. You don’t aware of the whole process it seems..

    2. Scraping a viva is not possible at this point, it can happen to future exam. But re-Viva is possible as result clearly shows discrimination with Mumbai Center.

  14. Future_Patent AGENT

    Dear Friends,

    I would like to bring the attention to evaluation of Paper II and strongly believe the same is evaluated in hurry and there has been no consistency in evaluation, though the Papers are evaluated at Mumbai Office. If there is no consistency within the Mumbai Patent Office then how come we expect consistency among the different Patent Offices.

    As we can see the passing percentage this year was only 10%, unlike it was 25% last year irrespective of the fact that people were more prepared this time as the exam was conducted after 3.5 years. How can it be possible that this time the results are reduced to just 10%. This clearly shows that patent office do not want more people to become patent agent. There are many people who has been doing prosecution and drafting for more than 6-7 years and they are not able to appear in the patent office for hearing before the Learned Controllers. We do not know when will be Patent office will conduct the next exam and wonder what will the passing percentage of the candidates.

    Also, I talked and know seniors people in the industry who has been in this filed for more than 6-7 years and they were failed to score 50% in paper II irrespective of the fact that they have scored close to 90% marks in Paper I. Further, I am surprised to see that one candidate (Roll No.D1644) has scored 18 marks in Paper I and have scored 51 marks in Paper II. I strongly believe most of the candidate who have failed in Paper II, if there Paper II will be evaluated with the same parameters as evaluated for the candidate with Roll No. D1644, many of such candidate will pass.

    Having said that, I would like my dear friends here to please suggest us what are the options we have left to file for re-evaluation for paper II. Also, if we ask through Right to information Act (RTI) for photocopies of paper II with marks allotted in each question, will the patent will provide such copies??? Moreover, if we ask in RTI for the photocopies of paper II of other candidates to compare the marks allotted to them for each answer with mine answer, will the Patent Office will provide such photocopies????.

    1. Yes you are right. But patent office wont provide photo copies of Paper-2.

      Indian Govt aim is, to increase IP awareness, IP qualified peoples & patents. But Patent Office’s aim is to Discourage such peoples. If they allow more people to become Patent Agent, then the filing of application will become more. Then they have to work to examine and grant such filed patent applications. Therefore it is better to fail the candidates.

      They are conducting PA exam to fulfill the Deleted number of PAs those not renewed their roll. Not for new patent agents.

  15. Patent Office has published Answers Key of Paper Set C.

    Here in Question number 24 Answer is C; however, as per manual of patent office 08.07.02 Page 105 describe as follows:

    On the grant of patent, every patent is allotted a serial number by the electronic system. A Certificate of
    Patent is generated in the prescribed format and an entry in the e-register is made simultaneously. In the
    Present electronic system, the date of recordal of Patent in the Register of Patents is the same as the date of grant of Patent by the Controller.

    So, B is also correct answer as per manual.

    Here in Question number 49 correct answer is BD which is already provided by Roshan John, Research Associate under the IPR Chair at IIT Madras and Dr. Sudarsan Rajagopal, on January 04, 2017 and by Mr. Muthu SenthilKumar on December 21, 2016.

    However, Patent Office recorded answer BC which is incorrect as there is no supporting provision provided in act.

    So, Patent Office must rectify the answer immediately and have to give marks to candidates whose answer they have considered as wrong.

  16. The part C of the question paper 1 mention that “Part C is of 30 marks and consists of 10 multiple choice questions of 3 marks each with more than one options correct (at least two options correct).”

    IPO said that at least two must be correct, if someone has selected at minimum 2 and 2 of them are correct, even though four were correct then why marks are not given? In such answer must be treated correct and full marks should be given.

    In another situation if someone has selected minimum 3 and 2 of them are correct, then why marks are not given? In such case 50% marks should be given.

    There is another question 27 has correct answer is B while Patent Office has published answer D: here in this section in Section 39 there is no any situation where anyone can consider “None of the Above” selection. So, section 39(1) (a) and (b) can be considered as certain special circumstances. So answer B is correct in view of above interpretation.

  17. I personally believe that there are some serious issues with patent office evaluations with Paper-II and viva examinations. I was surprised to see people scoring 70+ marks in Paper-I failing miserably in Paper-II, I am personally aware of two candidates who were possessing excellent drafting skills, but scored below 40 in Paper-II.

    For viva, it could be understandable that interpretation may have been a reason for some candidates failing to get qualifying marks, but there has to be a clear guidelines as there is huge discrepancy in scores from candidates from different examination centers.

    1. Please provide link to whatsapp group, even I am in full support of the petition against Viva voice since I am also the victim

  18. Any body filed RTI for VIVA discrimination – injustice calcification ? and got any reply from IPO ?

    Please reply and provide copy of reply, need to submit with WP.

  19. I think in Viva Voice, 40 marks should be given to all those qualified in written exam or should be completely removed. Its too subjective and disheartening indeed.

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