Wednesday, June 06, 2012
We have received multiple queries from our readers regarding the patent agent examination. Although there is no formal date prescribed as yet by the patent office, we may safely assume that the examination would be held anytime after August 2012.
Our readers would remember that we had in one of our previous post discussed the implications of the weightage reduction to viva-voce examination. In that case the Delhi High Court ("DHC") had struck down the minimum 50% weightage given to viva-voce examination. "Prescribing minimum 50 per cent marks in the interview may not be appropriate .... when the rule mandates securing 60 per cent marks in aggregate in all three papers i.e. two written and one viva-voce test. This rule is therefore arbitrary and becomes violative of Article 14 of the constitution. To this extent namely prescribing minimum 50 per cent marks in the viva voce is struck down. We, however, leave it to the rule making authority to either give less weightage by prescribing lesser minimum marks which should not be more than 25 per cent." This case was decided late February 2012, and was made applicable to the case of Anvita Singh only.
So till the time the above case was decided the patent agent exam could not be held. Thereafter another petitioner, Ms. Renu Bala had approached the DHC to decide her case and other similar cases too because she too had secured at least 60% in the viva voce but had secured less than 50% marks in viva-voce. In this case (W.P. (C)-3333/2012), the Hon'ble Division Bench (DB) directed the Union of India to carry out the amendments to the patent rules within three months.
In particular, the DB (Justice A.K. Sikri and Justice Rajiv S. Endlaw) held:
"3. We are informed by the learned counsel for the respondent that the matter necessitates amendment of the concerned rule and which aspect is under consideration by the Ministry of Law.
4. In view thereof, we dispose of this writ petition with direction to the respondent to carry out the suitable amendment, in terms of aforesaid direction, within three months. The case of the petitioner shall thereafter be considered in terms of the amended rule."
Because the petitioner, Renu Bala was represented by myself, and Ms. Sneha Jain of Sai Krishna Associates, we were present at the time the order was passed. We had discussed the fact that not only the present petitioner, but others like her and Anvita Singh (who secured at least 60% in two written examinations but less than 50% in viva) were declared failed overall in the examination. The Hon'ble Judges thereafter directed the Union of India to amend the rules within three months and thereafter consider the case of the petitioner.
Therefore, we can safely assume that the patent agent examination would not be held until the rules are amended. We will inform our readers of the change in the rules as soon as we come to know of them.
I would recommend those of our readers who are planning to prepare for the upcoming patent agent examination, to start preparing for the same by reviewing the latest patent manual and controller's decisions and practice drafting claims and specification from documents made available online at the IPO website. One good way to learn claim drafting is just to see the complete specification and the drawings and prepare claims from these two documents. Thereafter download the claims and compare your claims with the claims on file to see whether you get claim the correct invention. Similarly, it is possible to draft a skeletal specification from claims.