Justice S. Tamilvalan of the Madras High Court recently declared the amendment to Section 126 of the Patent Act, 1970 as unconstitutional. The judgment says that advocates, by virtue of possessing a law degree from a recognized university, have a right to file, appear and undertake all responsibilities of a patent agent.
The judgment, dated March 15, 2013, relates to an amendment introduced via Section 67 (a) of the Patents (Amendment) Act of 2005. Prior to the amendment, two categories of individuals could act as patent agents – the first category was composed of advocates, the second of those who possessed a degree in “science, engineering and technology” and who had cleared a qualifying exam.
Explains the High Court:
“Prior to the amendment, it was a matter of right to any advocate to register as patent agent, since the work of a patent agent is only a part of the work done by any advocate..”
After the amendment was passed, this “matter of right” of advocates was removed. Hence only those who had a science degree and who cleared the qualifying exam, could act as patent agents. If an advocate wanted to register at a patent office, s/he would not only require a science degree but also need to clear the qualifying exam.
Questing the constitutional vires of this amendment, IP lawyer SP Chockalingam filed a petition before the Madras High Court in 2006. Seven years later, the Madras High Court struck down the amendment, ruling that:
“Therefore, preventing advocates, better qualified persons and retaining less qualified persons as patent agents, on the basis of the examination conducted by the respondents would not be justified under the pretext of reasonable classification, hence, the impugned amendment is violative of Article 14 of the Constitution, as it is an unreasonable class-legislation.
The respondents selecting certain group of persons to register as patent agents, deleting advocates, more qualified persons, would be unreasonable and against the larger interest of the general public.
The impugned amendment is not based on any reasonable restriction but only an unreasonable restriction, contravenes Article 19 (1) (g) of the Constitution, hence, in the light of various decisions rendered by the Hon’ble Supreme Court, it has to be held that the impugned amendment is violative of Article 19 (1) (g) of the Constitution.”
Interestingly, the High Court not only struck down the amending provision but also criticized the fact that the qualifying exam conducted by the Patent Office, was placed over a law degree in terms of qualifications. The High Court remarked that,
“…. it cannot be disputed that a recognised degree, either B.L., or LL.B., which is the required educational to be enrolled as an advocate, is certainly a better qualification than the examination, conducted by the respondents in Patents Act and drafting to register any one as patent agent.
Speaking to Bar & Bench, Petitioner SP Chockalingam stated that although he is “thoroughly satisfied” by the judgment, he expects an appeal to be filed soon. His reasoning being that patents agents would be unlikely to let go of the monopoly they had been enjoying for such a long period of time.