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2019 Supreme(Mad) 365
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, V. BHAVANI SUBBAROYAN, JJ.
The Controller of Patents, Intellectual Property of Rights Building, Chennai & Another - Appellant
Versus
S.P. Chockalingam & Others - Respondent
W.A. No. 532 of 2014, W.P. Nos. 27681 of 2016, 949 of 2017 & W.M.P. No. 23840 of 2016, Cont.P. No. 2694 of 2016 & Sub.Appln. No. 614 of 2016
Decided on : 05-03-2019
Advocate Appeared:
G. Rajagopalan, Additional Solicitor General Assisted by Venkatasamy Babu, C.V. Ramachandramurthy, Sr.P.C., S.P. Chockalingam, Advocate, Wing Commander T.R. Mohan, In-Person.
Headnote:
Constitution of India - Article 14, 19(1)(g), 226 and 21 - Contempt of Courts Act - Section 11 - Patents Act, 1970 - Section 126, 53 - Issuance of Writ of Mandamus - Amendment brought - Contempt Petition filed under Section 11 of Contempt of Courts Act to punish the respondent for violating the order of this Court - Question involved in these cases is whether the amendment introduced to Section 126 of Patent Act, 1970 as made by Section 67(a) of the Patents Amendment Act, 2005 is ultra vires Article 14, 19(1)(g) and 21 of Constitution of India. An Advocate practising before this Court specializing in Intellectual property matters filed W.P. praying a Writ of Declaration to declare the said amendment as illegal, unconstitutional, ultra vires and void - Writ petition was allowed by order and learned writ Court declared amendment to Section 126 as illegal and unconstitutional - Controller of Patents and the Union of India who were arrayed as respondents in the writ petition have filed W.A. - W.P. has been filed by an Advocate who was earlier serving the Indian Air Force, for issuance of writ of Mandamus upon the Controller General of Patents, Design and Trademarks – Held, petitioner would vehemently contend that the appellants should insist upon patent agents to possess law qualification - However, Court cannot legislate nor direct the legislature to pass a particular law and therefore, we can take no cognizance of the said submission. Thus, the contention raised by the petitioner does not merit acceptance - Challenge to amendment also should fail apart from the fact that the writ petition is grossly barred by inordinate unexplained delay and latches and the statutory provision having been in force is valid for all purposes - Challenge to amendments to the Patents Act is devoid of merits and consequently W.A.No.532 of 2014 is allowed and the order in W.P.No.8472 of 2006 is set aside by upholding the validity of the 2005 amendment. For the reasons set out by us in the preceding paragraphs - W.P.Nos.27681 of 2016 and 949 of 2017 are dismissed.
T.S. SIVAGNANAM, J.
(Prayer: Writ appeal filed under Clause 15 of Letters and Patents Act against the order made in W.P.No.8472 of 2006 dated 15.03.2013.
Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, directing the first respondent to enter my name in the 'Register of Patent Agents' maintained by first respondent, upon processing my application for the same which is already on the records of first respondent, within a reasonable stipulated time.
Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Declaration, to declare that amendment brought to Section 126 of the Patents Act, 1970 by Section 53 of the Patents (Amendment) Act, 2002 (Act 38 of 2002) as illegal, unconstitutional, ultra vires and void.
Contempt Petition filed under Section 11 of Contempt of Courts Act to punish the respondent for violating the order of this Court dated 15.03.2013 in W.P.No.8472 of 2006.)
1. The question involved in these cases is whether the amendment introduced to Section 126 of the Patent Act, 1970 (hereinafter referred to as "the Act") as made by Section 67(a) of the Patents Amendment Act, 2005 (Central Act 15/2005) is ultra vires Article 14, 19(1)(g) and 21 of Constitution of India. An Advocate practising before this Court specializing in Intellectual property matters filed W.P.No.8472 of 2006 praying a Writ of Declaration to declare the said amendment as illegal, unconstitutional, ultra vires and void. The writ petition was allowed by order dated 15.03.2013 and the learned writ Court declared the amendment to Section 126 as illegal and unconstitutional. The Controller of Patents and the Union of India who were arrayed as respondents in the writ petition have filed W.A.No.532 of 2014.
2. W.P.No.27681 of 2016 has been filed by an Advocate who was earlier serving the Indian Air Force, for issuance of writ of Mandamus upon the Controller General of Patents, Design and Trademarks, the first respondent in the said writ petition to enter his name in the register of Patent Agents by processing his application within a reasonable time.
3. W.P.No.949 of 2017 has been filed by an Advocate who was the petitioner in W.P.No.8472 of 2006 challenging the amendment brought to Section 126 of the Act by Section 53 of the Patents (Amendment)Act, 2002 (Central Act 38/2002) as being illegal, unconstitutional, ultra vires and void.
4. To be noted that a writ petition in W.P.No.949 of 2017 had been filed after 15 years after the amendment was brought out to Section 126 of the Act.
5. For the sake of convenience, the parties shall be referred to as the petitioners and the respondents.
6. The petitioner/Advocate would contend that the amendment carried out to Section 126 of the Act prohibits him from registering his name as a Patent Agent and this is a clear infringement of his right to practice his profession as an Advocate as enshrined under Section 30 of the Advocates Act, 1961. It is submitted that the amendment deprives him of his right to practice as Patent Attorney and the amendment is in violation of fundamental rights enshrined under Article 19(1)(g) of the Constitution of India. It is submitted that the qualification stipulated by virtue of the amendment to be registered as a Patent Agent is a degree in Science, Engineering or Technology and a person who has graduated in a physics or a computer science may not be conversant or proficient in Bio-technology or Pharmaceutical Sciences and vice versa and insisting upon a degree in Science, Engineering or Technology, there will be a bar for application being filed by graduate Mechanical Engineer in the field of Chemistry or Biological Sciences and therefore, there is no logic or rationale behind the amendment imposing restrictions prescribing technical qualifications to become a patent agent.
7. It is submitted that p
