[This post has been co-authored with SpicyIP Intern Pranav Aggarwal. Pranav is a second-year student pursuing B.A.LL.B.(Hons) at Rajiv Gandhi National University of Law, Punjab. His previous post can be accessed here.]
On August 2, 2023, the extremely problematic Jan Vishwas Act, 2023 was passed by the Parliament. As highlighted by Aparajita, here and here, the amendments introduced by the Jan Vishwas Act, 2023 dilute the obligation to submit the working statement and introduce new powers for the controller to establish a separate adjudicatory mechanism within the patent office. Seemingly to further these amendments, the Department for Promotion of Industry and Internal Trade (DPIIT) published the Draft Patent (2nd Amendment) Rules, 2024 on January 3, 2024.
However, it is unclear who were the stakeholders that were consulted before formulating the draft rules and presently the publication does not specify anything about the drafting process adopted by the department. The DPIIT has asked for suggestions and objections on the proposed rules within 30 days i.e. February 2, but this timeline seems insufficient for detailed and constructive feedback from all the stakeholders and at least 45 days should have been granted for submitting the suggestions.
Unclear and Ambiguous
Talking about first impressions, it looks like the proposed rules were drafted hastily as the draft is marred with ambiguous language and typos. Crucial bits like deadlines for submitting relevant documents before the prescribed authorities are unclear. For instance, under the proposed Rule 107C, it hasn’t been specified whether the stipulated time frame of one month for passing a speaking order has to be from the date of allocation of the complaint to the adjudicating officer (under the proposed Rule 107B(2)) or within 1 month from the date of filing of the complaint by a complainant. Similarly, there are no explanations for what terms like “endorsement” under the proposed Rule 107F (1) would mean.
Leaving out Other Offences
As mentioned above, the rules have only focused on the amendments as provided by the Jan Vishwas Act and ignored some of the essential rules that should have been included. Most importantly, the proposed rules seem to apply only on offenses falling under Section 120 (Unauthorised claim of patent rights), 122 (Refusal or failure to supply information to the Controller or the Central Government), and 123 of the Patent Act (Practice by non-registered patent agents). However, logically it should also apply to the offenses under Section 124 as well. This is because Section 124 covers any offenses (including ones committed u/s 120, 122) when committed by a company and its omission can lead to exclusion of complaints against them. Apart from leaving behind Section 124, the proposed Rules should also have prescribed clarity on how other offenses i.e. those falling under Section 118 (violating the secrecy provisions relating to certain inventions) and Section 119 (falsifying the entries in the register) would be adjudicated upon.
Clarity on the Qualifications/ Seniority of the Adjudicating Officer and the Appellate Authority
Furthermore, the proposed rules provide for a separate redressal mechanism of complaints under Sections 120, 122, and 123 of the Patents Act through an Adjudicatory Officer (proposed Rule 107B) and an Appellate Authority (proposed Rule 107E). However, it does not clearly define their designation or qualification leading to substantial ambiguity. Therefore, the proposed Rules should provide for the officials who will be undertaking such proceedings. Preferably, an Adjudicatory Officer should be an officer of the rank of a Deputy or an Assistant Controller and the Appellate Authority should be an officer not below the rank of a Joint Controller.
Apart from the above, a detailed set of suggestions will be shared on the blog soon, and we would highly encourage our readers to partake in this process and comment on the proposed Rules. Also, we’d be happy to link to/share other submissions to the concerned department if anyone would like to share their comments with us.
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- Source: https://spicyip.com/2024/01/some-thoughts-on-the-draft-patent-2nd-amendment-rules-2024.html
