In my last post, I had taken the view that the consequence of the patent applicant not responding to the notice of pre-grant opposition issued by the Controller within the non-extendable 3 month period under Rule 55(4) leads to deemed abandonment of the patent application within the meaning of Section 21 of the Patents Act.
The comments received to the post give me the impression that "office practice" has a vice-like grip on the practice of the subject. A large part of what patent practitioners understand and practice, in particular patent agents and non-litigating patent practitioners, is influenced by office practice and practical exigencies of dealing with a particular patent application. This is justifiably so because judicial guidance on the minutiae of office practice is precious little, and until the time applications present more opportunities to address practices which we take for granted, it may not make sense for practitioners to go against the tide of “office practice”.
Further, for prosecuting patent attorneys the primary objective is to deliver results to the client, and set the law in the process, not the other way round. After all, the client doesn’t pay the attorney to set the law unless the law helps further the client’s case. Therefore, I don’t wish to commit the oft-committed sin of pontificating to experienced practitioners as to how they ought to go about their practice.
May be it is fashionable for a few to bear a superior prejudice and constantly berate Indian patent practitioners without ever having practiced the subject or with negligible experience with any form of patent practice. I don’t approve of this tendency because sanctimony hasn’t ever helped change a situation, instead it only contributes to alienating an audience with whom it is absolutely imperative to engage if we wish to have a constructive discourse aimed at changing the system for the better.
My sole intention is to drive home the point that although it might help in the short term to conform to office practice to get the job done, it is important to rigorously test office practice on the anvils of statutory interpretation so that we know what is the most plausible position of the law that a Court might take if presented with an issue. At least this way, we know what is in store if office practice were to be under the Court’s lens, and accordingly have a Plan B in place.
Simply put, it does not help to delude ourselves into believing that office practice is the law or that it represents the true position of the law. We must not let office practice affect our judgment to such an extent that we become incapable of objectively analyzing the legality of an action based strictly on established canons of statutory interpretation.
It would probably help if patent agents, who primarily handle drafting and prosecution, interact as frequently as possible with patent litigators so that the drafter is on the same page as the litigator. This way consistency in arguments can be maintained from the stage of prosecution to litigation.
I sincerely hope that these suggestions are received in the right spirit.