Advocates as Patent Agents: What did the Madras High Court Say?

On March 15, 2013, the Madras High Court delivered a decision (available here) striking down as “illegal, unconstitutional, ultra vires, void and unenforceable” the amendment to Section 126 of the Patents Act, 1970 which prescribes the qualifications for registration as patent agents.

The decision was delivered in a writ petition filed in 2006 by an advocate practicing before the Madras High Court, Mr.SP.Chockalingam, who was deemed ineligible by the patent office to appear for the patent agent examination in accordance with Section 126 of the Patents Act, as it stands today since 2005.

I seriously and strongly recommend reading this decision for reasons best left unsaid. This is a long post because certain paras of the decision have been reproduced for best “effect”! I have chosen to not analyse the decision, and fervently hope that it is appealed against and set aside!

History of Section 126

The original Section 126 read as follows:

“126. Qualifications for registration as patent agents

(1) A person shall be qualified to have his name entered in the register of patent agents if he fulfils the following conditions, namely: -

1. he is a citizen of India;
2. he has completed the age of 21 years;
3. he has obtained a degree from any University in the territory of India or possesses such other equivalent qualifications as the Central Government may specify in this behalf, and, in addition,-

(i) is an advocate within the meaning of the Advocates Act, 1961; or

(ii) has passed the qualifying examination prescribed for the purpose;

(d) he has paid such fee as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), a person who has been practicing as a patent agent before the 1^st day of November, 1966 and has filed not less than five complete specifications before the said day, shall, on payment of prescribed fee, be qualified to have his name entered in the register of patent agents.”

Under the original provision, the requirement was to have “a degree from any university” in addition to being an Advocate or passing the patent agent examination. In 2002, the requirement of a degree in science, engineering or technology from any University was brought in. Clearly, between 2002 and 2005, following were the requirements:

1.       the candidate must have a degree science, engineering or technology

2.       The candidate must also be an advocate or must pass the patent agent exam

In 2005, the additional requirement of being an advocate was removed. After all these amendments, sub-section (1) of Section 126 reads as follows:

126. Qualifications for registration as patent agents.—(1) A person shall be qualified to have his

name entered in the register of patent agents if he fulfills the following conditions, namely:—

(a) he is a citizen of India;

(b) he has completed the age of 21 years;

(c) he has obtained a degree in science, engineering or technology from any university established under law for the time being in force in the territory of India or possesses such other equivalent qualifications as the Central Government may specify in this behalf, and, in addition,—

(i) [Omitted by the Patents (Amendment) Act, 2005]

(ii) has passed the qualifying examination prescribed for the purpose; or

(iii) has, for a total period of not less than ten years, functioned either as an examiner or discharged the functions of the Controller under section 73 or both, but ceased to hold any such capacity at the time of making the application for registration;

(d) he has paid such fee as may be prescribed.

The Writ Petition

According to the decision, it was the case of the petitioner that the 2005 Amendment was unconstitutional since it prevented non-science graduate advocates from appearing for the patent agent exam. This statement itself is factually incorrect because the requirement of a science-degree was introduced in the 2002 amendment, as pointed out above, and not in 2005. In 2005, only the additional requirement of being an advocate was removed.

In other words, between 2002 and 2005, only advocates with a science/engg. degree could register as patent agents without having to clear the patent agent exam. The rest of the candidates, with only a science/engg. degree, had to clear the exam. In either circumstance, between 2002 and 2005, candidates with no science/engg. degree were ineligible for registration as patent agents.

Anyways, neither the Petitioner nor the Court seems to have bothered to verify this point, which is more or less reflective of the quality of reasoning in the judgment. Although I hate this phrase for its abuse, I am tempted to use it- “Let’s sample these “nuggets” of the Court in the decision”.

“16. It could not be disputed that to become an Advocate, one should have passed B.L., or LL.B degree through a recognized University or its affiliated law college and such a degree could have been approved  by Bar Council, as per Advocates Act. Hence, mere law degree granted by any recognised university is not sufficient, if the same has not been approved by Bar Council. It is an undisputed fact that to become an advocate, one should have studied various laws and passed the law examination, including drafting and procedural laws, as per the curriculum prescribed by any recognised University. The respondents cannot say that in imparting legal education or conducting the law examinations, a recognized law college or University would be inferior to the respondents and further, to be a qualifying degree, either B.L., or LL.B., to enroll as Advocate, power of supervisory control is vested with the Bar Council, as per Advocates Act. Even if a Law college or University is empowered to confer any Law degree, such a degree would not be a sufficient educational qualification to enroll as Advocate, unless the same is recognised by the Bar Council, as per Advocates Act....

17. In this regard, this Court has to consider whether the impugned amendment has been made on public interest, based on reasonable classification or otherwise to be construed as an unreasonable class legislation. It cannot be said that a degree holder in science, engineering or technology, who has passed the examination conducted by the respondents in Patents Act and drafting would be a better qualified person to function as patent agent, than an Advocate, who passed various law papers in his Examinations, including drafting and procedural laws. It is an admitted fact that to be an advocate, one has to pass the examinations relating to various laws conducted by any recognised University. Pointing out the same, the petitioner, party-in-person argued that the amendment, deleting sub-clause (i) of Section 126 (1) (c) of the Patents Act, removing the term Advocate, within the meaning of Advocates Act, 1961, has to be construed as an unreasonable class legislation and not a reasonable classification, as contemplated under Article 14 of the Constitution.

23. The view of eminent Jurist and great academicians is that "law is a social science" and a practicing lawyer is a social engineer. When such is the view of Courts and eminent Jurists, the respondents are not entitled to take a decision mechanically, that law is not a science and that graduates in science, engineering or technology, after passing a Departmental Examination in Patents Act and drafting, conducted by the respondents, they will be better qualified persons than any practicing advocate. Based on the nomenclature given by the Universities either B.L., or LL.B., the respondents cannot hold that law is not a science, in spite of the fact that it is an important social science. This Court is of a considered view that B.L., or LL.B., awarded by any recognized university is a degree of social science in law and a practicing lawyer is a social engineer. It is the prerogative of the university to decide the nomenclature of a degree, based on which, the respondents cannot hold that law degree is not a degree in science. The petitioner, party-in-person argued that the impugned amendment deleting sub-clause (i) to Section 126 (1) (c) of the Act, preventing Advocates to register as patent agents as a matter of right, is arbitrary, based on a wrong notion that a degree holder in science, engineering or technology, passing the Departmental Examination in Patents Act, the Rules there under and drafting would be better qualified persons to function as patent agent. Hence, the impugned amendment, could be construed only an unreasonable class legislation, prohibited under Article 14 of the Constitution, as the same is not a reasonable classification, as decided by the Hon'ble Supreme Court."

In effect, according to the Court: 

A.      Advocates without a science degree are better qualified to act as patent agents than science/engg. graduates;

B.      A degree is law too is a degree in science because law too is science (!!!)

Paras 19, 41 and 42 of the decision are even more “critical” since they impute “sinister reasons” for leaving the law degree out of Section 126. I strongly recommend reading every line and word of these paras.

“19. The Patents Act and Rules framed thereunder empowers the respondents, in prescribing the syllabus, conducting exam, appointing patent agents and also power to remove patent agents. The Court can take judicial notice that after the impugned amendment, normally such patent agents may not be practicing advocates before High Courts or Supreme Court, as the amended Act has taken away the rights of Advocates, to register as patent agents as a matter of right, that was available prior to the amendment, under Section 126 (1) (c) (i) of the Act. Therefore, in all practical purposes, after the amendment, the patent agents have been made amenable to the respondents, since the term advocate has been deleted from the section. It is further contended that if a practicing lawyer is permitted to register as patent agent, as per the Act, prior to the amendment, being a legal practitioner, he may directly approach the High Court and the Supreme Court, in case an order passed by an authority under the Patents Act is against law. Hence, prior to the amendment, the authority was made more vigil in following Rule of law and passing proper and appropriate orders, regarding the duties and functions of patent agents. If all the patent agents are selected only by the respondents, as per the procedure prescribed by the respondents, leaving Advocates, there would be no broad outlook in the functioning of patent agents, in respect of preparation, drafting, filing and appearing before the first respondent and make proper and broader interpretation of law, relating to Patents Act. Therefore, preventing advocates, who are more qualified in preparing documents, drafting, transact business before the Controller and permitting only the degree holders in science, engineering or technology, who passed the Departmental examination conducted by the respondents, by way of the impugned amendment, that would certainly narrow down the skill of patent agents. It was also argued by the petitioner, party-in-person that the impugned amendment violates Articles 14, 19 (1) (g) and 21 of the Constitution and the amendment is also not beneficial to the interest of the common people and the country.

41. The Court can also take judicial notice that if any lawyer is permitted to register as patent agent, he may directly challenge any order passed by the respondents or any other officers subordinate to the respondents, in case the order is contrary to law, however, persons selected by the respondents, on the syllabus prescribed and the examination conducted by the respondents and also appointed by them, the respondents would have professional control over the said patent agents and normally they would be amenable to the authorities under the Patents Act and that would not beneficial to the larger interest of the pubic and that may likely to increase corruption.

42. In this regard, it is relevant to refer the Golden Words that "Power corrupts a man and absolute power corrupts absolutely". Leaving advocates and creating only a group of persons, who pass the departmental examination conducted by the respondents as patent agents, which will create only a narrow circle and they may be amenable to the officers of the respondents, however, that would not be in the larger interest of the public. In any angle, I am of the considered view that deleting sub-clause (i) to section 126 (1) (c) of Patents Act, by way of the impugned amendment, whereby preventing advocates from becoming patent agents, would be against the mandate of Article 14, on the ground that the same is against equality before law and equal protection of law, as unreasonable class-legislation.”