As discussed in our previous post, this post brings forth our analysis of some aspects of this important judgment. The judgment was provided to us by Mr. S.P. Chockalingam, the petitioner in the case. The judgment may be accessed directly here (Writ Petition 8472 of 2006).
The judgment declares the amendment introduced to Section 126 of the Patents Act, 1970, by Section 67 (a) of the Patents (Amendment) Act, 2005 as illegal, unconstitutional, ultra vires and void. Basically it allows all advocates to practice before the patent office without giving the patent agent exam.
The Madras High Court (MHC) held that "..[M]erely by prescribing qualification, as degree holder in science, engineering or technology and passing a Departmental Examination on Patents Act and drafting, the respondents cannot monopolise such category of persons and say that Advocates are not competent to be patent agents and similarly the right that was available to advocates under Section 126 (1) (c) (i) of the Act, could not be taken away against the Constitutional safeguards, by way of the impugned amendment."
It is important to note that the MHC treats the patent agent examination as a departmental examination, and treats the same as a gimmick.
In my view the judgment actually goes too far in providing the benefit (of appearing before the patent office) to lawyers without a science background. The logic is somewhat circular - law is (social) science (paragraph 23) - and that the patent office cannot take the view contrary to that of eminent jurists that a lawyer is (social) engineer!!
Our readers would be aware of the decision of the Delhi High Court (DHC) in the case of Anvita Singh - upholding the patent agent examination and reducing the weightage for viva as discussed here. The MHC judgment is penned by a single judge whereas the DHC decision is by a division bench - For this reason the MHC judgment contradicts part of the DHC decision.
Some comments to the previous post argued that if someone could argue a patent case, then it was good reason for them to be able to practice before the patent office. These comments seem ignorant of the fact that the primary role in writing a patent application and arguing a patent case are poles apart. An analogy is appropriate here: Consider the task of demolition of a building - there are many ways to break it down - and among them could be use hammers, dynamite etc., or a civil engineer might opine to break down selected beams, pillars so that the entire building comes down under its own weight. Now consider the task of building a structure or a house - it has to be precise and ordered.
When applying to patent law, when arguing for or against a patent - the skill that is being used is not the same skill to write the patent application. The same argument can be made about judgement skills that go for adjudicating a patent case.
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