Viva Voce, Constitutionality and CLAM

Recently, the Indian Patent Office (IPO) announced the schedule for the next patent agent exam to be held on January 15 and 16, 2011.

This exam is the key filter towards the practice of “patent” drafting and prosecution in India. In other words, unless one meets the eligibility criteria (that of being a science graduate) and passing an exam, one cannot draft and prosecute patents on behalf of clients. Not even if one is stamped with legitimacy as as an “advocate” under the Bar Council rolls (lawyers are merely entitled to represent clients in patent litigation, advisory work and in hearings before the Controller of Patents).

For those interested, the results of the last patent agent exam were analysed here.

Given that one part of the exam (the viva voce) appears to suffer from a constitutional infirmity, I thought this merits a discussion on LAOT, the home to many constitutional experts.

By way of background, the eligibility criteria for taking the patent agent exam is that the person must have completed 21 years of age and must have a science, engineering or technology degree from India. Importantly, the person must also have passed a qualifying exam.

This exam tests a candidate on his/her knowledge of the patents act (Paper I) and his/her proficiency with drafting and interpreting patent specifications and other related documents (Paper II). The total marks for the exam are 300. Each of the written papers (Papers I and II) is for 100 marks. Subsequent to the written exams, a viva voce of 100 marks is also conducted.

In order to qualify, a candidate must get 50% in each individual component of the exam (Paper I, II and the viva) and shall be declared to have passed the exam only if he/she obtains an aggregate of 60% of the total marks.

Some of us are of the view that the requirement of a viva voce is unconstitutional, inherently subjective and entails significant administrative and other costs. Hence it should be done away with.

Alternatively, assuming that the viva is held legally valid in principle, the present structure of the viva is arbitrary and unconstitutional. And should therefore be changed.

In order to engender more discussion on this theme, we have thrown open this debate on two platforms. One is the CLAM platform, that had already been introduced on this blog earlier. We’d run two policy proposals on CLAM, one dealing with the copyright exception for the “disabled” and the other dealing with other copyright proposals (that were drafted in the light of the recent copyright amendment bill by the government).

All you need to do is register through a very simple process–and you can participate in CLAM by posting your comments.

Alternatively, for those of you “argumentative” folks interested in more of a “debate” style platform, we’ve put up the above proposals on debatepedia. Here again, all you need to do is to simply register (provide a user-name and password) and you are ready to go.

If you don’t have the time and inclination to register at these sites, you can still view the proposals by simply visiting the relevant pages on CLAM and Debatepedia.

We would be very grateful if as many of you (as possible) could participate in this initiative. For one, it helps us refine the proposal and strengthen the arguments (or perhaps appreciate that the arguments are weak and we are barking up the wrong tree).

We are also hoping to improve the CLAM platform through this process. CLAM is meant to engender a more “collective’ and participatory process in law making. The time is ripe for such a platform, as would enable one to present policy proposals and refine/strengthen it (or even discard it) after inputs from stakeholders and members of the public. The platform will initially start with some key IP policy proposals and then move on to cover other legal/policy areas.

The platform is not only meant for proposals on intellectual property. Rather, anyone with a carefully thought out policy proposal on any area of law can use the platform by presenting the proposal therein and seeking public input and views. Once such views are received and the issues thoroughly debated on the platform, the mover of the proposal/motion could amend their proposal in the light of such views and forward the final proposal to the government for consideration and implementation.

Unfortunately, the current CLAM platform is far from optimal. If some of you who have strong views on the legality of viva voce’s (or even those of you who are interested in participatory policy making more generally), can use these platforms and come back with your suggestions on how to better it, it would help us devise a far more optimal platform than the present one.

In fact, we are also thinking of opening this to competition and offering a prize (20-25,000 Rs) for the person who designs the most optimal CLAM platform for us. Such a platform should enable the following:

i) Any person should be able to formulate a policy proposal on any area of law and throw it open to public debate and participation.

ii ) Members of the public (or any other closed group) can edit the said proposal and/or offer comments on it.

iii) Members of the public (or a defined close group) can view the proposal and all the comments pertaining to it, as also the history of the edits and comments.

iv) Members of the public (or a closed group) have the ability to add more arguments to the proposal and debate them out (much like debatopedia).

v) A general flee flowing discussion board, where folks can comment more generally on the proposal and surrounding issues, without necessarily pegging it to actual wordings of the proposal.

vi) The building up of communities and networks of interested people around specific areas of law/policy

vii) The ability to collect signatures for the final public petition that comes out of this participatory process and is sent to the government for consideration and implementation.

If any of you are interested in this platform and structuring it or collaborating on this venture, please let me know (shamnad [at]

Join the discussion

This site uses Akismet to reduce spam. Learn how your comment data is processed.