A.K. SIKRI, J.

1. The petitioner herein is an M.Sc. which degree she has obtained from the Indian Institute of Technology (IIT), Delhi. The petitioner claims that she has been remained involved in the work related to patent, drafting, filing and prosecuting application for grant of patent registration by the Patent Office under the Patents Act, 1970 (hereinafter referred to as ‘the Act’) and has vast experience. However, she has not been able to get herself registered as Patent Agent under the Act because her repeated attempts to pass qualifying examination for Patent Agents have remained unsuccessful. This qualifying exam is in two parts, namely, written test and viva voce examination. Though she has exhibited excellent performance in so far as written test is concerned, as she has not been able to secure minimum 50% marks in the viva voce examination, which is the requirement of Rule 110 of the Patents Rules, she is treated as unqualified. It is for this reason that by way of writ petition the petitioner has challenged the said provision of Rule 110 of the Patents Rules which mandates securing minimum 50% marks in viva voce examination.

2. Section 126 of the Act prescribes qualifications for registration as Patent Agent and reads as under:-

“Section 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:-

(a) he is a citizen of India;

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

(c) he has obtained a1[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,-

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

[(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……”

3. One of the requirements for qualifying for registration as Patent Agent, thus, is passing the qualifying examination prescribed for the purpose. This is so prescribed in Rule 110, as indicated above, to have clearer view of this requirement. We reproduce here under Rule 110 of the Patent Rules. Written examination is in two papers followed by viva voce. All three have 100 marks each. Sub-Rule (3), which is the bone of contention, stipulates that in each of the written papers as well as viva voce examination a candidate is required to secure minimum 50% marks and aggregate of all three papers has to be 60%. The petitioner has no quarrel with the prescription of minimum 50% marks in papers I and II each. She also does not question the requirement of securing 60% marks in aggregate. Her grievance is limited to that part of the Rule which mandates securing 50% marks in viva voce as well. According to the petitioner, it is too high a prescription and gives arbitrary power to the interview board to fail a candidate even when he or she has done extraordinarily well in the written examination. Conversely, a candidate who has got more than 50% but less than 60% marks in the written test consisting of aforesaid two papers, can be given very high marks in viva voce to ensure making overall 60% aggregate in his/her case and thereby qualifying such candidate. She has tried to demonstrate it by giving her own example vis-à-vis the cases of some other candidates. In the examination conducted in January, 2011, the petitioner had secured 61 marks in Paper I and 72 in paper II. Thus, her aggregate percentage in the written examination was 66.5%. However, she was assigned 40 marks in viva voce as a result whereof she was declared ‘failed’ in totality. As against this, the petiti