The CGPDTM has ordered the removal of a patent agent from the Register of Patent Agents following a recommendation by the Ad-Hoc committee that had been constituted by the DPIIT to deal with the complaints against Patent or Trademark Agents. Readers will recall that back in September 2024, the CGPDTM had formed two committees following the Delhi HC’s directions in Saurav Chaudhary v. Union of India & Anr. Interestingly, the agent in this case was the one involved in Saurav Chaudhary as well, and the Court had directed the CGPDTM to hold an enquiry against him. As a side note, the judgment in Saurav Chaudhary had directed the drafting of a Code of Conduct (CoC) to regulate Patent and Trademark Agents, to be put up for stakeholder consultation and be notified latest by 31st December, 2024. As of today, I cannot find a draft CoC on the CGPDTM’s website. If any reader has further information on this, please do share it in the comments below.
Breaking Down the Ad-hoc Committee Report
The issue at hand arose after the Patent Agent failed to inform the applicant of the issuance of the FER in April, 2022. The agent also did not reply to several communications undertaken by the applicant. Subsequently, the patent application was deemed as abandoned after no reply to the FER was filed within 6 months. The applicant thereafter filed a request for restoring the patent application leading to the judgment in Saurav Chaudhary.
The 5-member Committee (3 from the Office of CGPDTM and 2 IP Practitioners, see here), in its report has touched upon several points including fiduciary capacity of the client, absence of a formal code of conduct, and whether this is professional misconduct and not mere negligence. The report notes that failure in effectively communicating to the client critical milestones such as the issuance of FER, constitutes a breach of the agent’s duty. The Committee did not accept the argument by the patent agent that there was no formal Code of Conduct, particularly regarding mode of communication with Applicants/Clients, therefore no adverse inference be drawn. This argument is in furtherance of the claim made by the agent that he had in fact informed the client of the FER through calls on May 04, and Sept 10. The applicant denied receiving any information with respect to the FER from the patent agent. The report notes that these calls are undisputed, but no speculation was possible in the absence of a call recording ascertaining the content of the call. The applicant on the other hand had put on record several emails that were not responded to by the agent. The report emphasised that the nature of their role is sufficient to expect diligence, transparency, and accountability, even in the absence of a code of conduct. The report also notes that the agent is also a qualified lawyer and bound by the Professional Ethics under the Advocates Act.
The report in para 44 also equates the role of Patent agents to that of legal practitioners owing to the requirement of possessing knowledge of patent law and procedure. The Delhi HC in The EU rep’d by the European Commission v. Union of India (2022), had also opined that the mistake of the patent agent would be similar to the mistake of an advocate who may be representing parties in any civil or criminal litigation (Read Lokesh’s post on this here). So, in the absence of codified ethical standards, does the Advocates Act bind these patent agents? And is the current Ad-Hoc Committee empowered to pass observations on violations in the Advocates Act? It is one thing to equate the roles of legal practitioners to that of patent agents, and another to impress upon the same set of ethics to both these classes. Clarity on this seems necessary.
Negligence or Professional Misconduct?
The interesting portion of the Committee’s report seems to me the discussion on negligence and its subsequent conversion to misconduct. The word “misconduct”, not defined statutorily, was interpreted by the Supreme Court in the case State of Punjab v. Ram Singh (1992) on a policeman’s conduct as “may involving moral turpitude, if must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.” The aforesaid case talks about ‘misconduct’ and not ‘professional misconduct’ but may be taken as indicative interpretation. The Supreme Court in P.D. Khandekar v. Bar Council of Maharashtra (1983), in a case pertaining to the conduct of an advocate held that negligence without moral delinquency did not constitute professional misconduct and that the same must receive a wide construction.
What can be moral delinquency depends on the individual case and circumstances. In the present case, in para 53 the report spells out reasons for interpreting this negligence as misconduct. The agent’s failure in communication of FER, a key component of the patent grant process, and also repeated dereliction of duty, can amount to misconduct. There seems to be a failure to uphold the ethical and professional standards demanded of a patent agent. Whether the agent’s actions were only of mere negligence? The Supreme Court in CBI, Hyderabad vs K. Narayana Rao (2012) has laid down two factors in this regard – one, that a professional does not have the requisite skill which they professed to have possessed, or second, the professional did not exercise, with reasonable competence the skill they did possess. The actions of the agent do not exactly seem to be one that may fall in either. Since, his communication to the client were not directly related to his skill but were inherently part of his duty to inform, claiming mere negligence may not be a sufficient defence.
Additionally, in para 50 and 51 of the report the Committee has also reiterated factors to determine negligence which include lapse or error in judgment, carelessness, ignorance, lack of diligence, or insufficient care. The agent had a record of over 100 patent applications and the report does not note any prior incidence of negligence/misconduct. It only notes that some of these have been granted and 60% of them have been abandoned or withdrawn, which the Committee deemed to show a ‘lackadaisical attitude.’ There is nothing in the report to indicate that the actions by the agent were deliberate or wilful either. Therefore, the actions of the agent can be interpreted as one that may have been borne out of carelessness and ignorance.
Could the Committee have taken a lenient view in its recommendation? Since there had been no prior antecedent or adverse remarks on his practice, is deregistering an agent too harsh an action? Lokesh (here) also makes some suggestions on whether cancellation of agent’s registration may be disproportionate and undesirable. Also, as per the Indian Express report by Ravi Dutta Mishra, the agent has stated that the “evidence affidavit dated 11.11.2024 was not even acknowledged in the order” and “that his application for cross-examination was also rejected.” Could this evidence be crucial in determining an alternative outcome? It is hard to answer these questions without knowing more specific facts. Regardless, very interestingly, the report has also quoted a government official stating that the “ad-hoc committee has a number of such cases of misconduct, including against large legal firms, which are also pending but the patent office is yet to take action against them.” It will be interesting to see the approach the Committee takes up in deciding future issues of misconduct.