May 9, 2013

The constitutionality of section 126 continue. ..

In the last post I discussed some of the issues particularly in reference to Art. 14 of the Indian Constitution. On continuation to that there are few other issues which are, and aren't directly related to violation of fundamental rights per se, but definitely add to the unconstitutionality of the section 126 of the Patent Act.  These issues are as follows:

1. The body selecting the patent agents: The patent office itself selects patent agents. It is well understood in law that the Controller (or proceedings before Patent Office) is a quasi judicial body. The Controller must just act judicially.  Various proceedings in front of Controller are judicial proceedings. All the natural laws are well applicable to any person appearing before the Controller and a writ may be filed if such rights are violated.

If Controller prohibits a person appearing on behalf of an applicant for not being a Patent Agent and sticks to the requirement of representation only by a Patent Agent, the Controller in effect, selects legal representation of opponents in matters before quasi-judicial authority, in which the Patent Office is itself a party. What does it sound? Violation of administrative principles of bias and violation of natural right by snatching best possible legal representation? What more? Article 14 is gone.

2. Article 19 violation;  I don't have much to say on this.  Reasonable restrictions of Article 19 must meet the test of Article 14. If there is violation of Article 14 and the subject matter also environs article 19 on common grounds, essentially it must violate article 19 as well.

The drafted section 126 and 127 suffers from lots of constitutional issues. This might be due to hurriedly drafted Patent Amendment Act 2005. I suspect that some of these issues might arise in Appeal (if Patent Office decides to appeal). Whatsoever,  I don't think apex Court should allow the petition declaring Section 126 of the Patent Act enforceable in law.

Meanwhile, I know of a RTI application filed asking clear guidelines in light of change in law and details related to the case. We will see more of this sooner.