The Court observed that the lack of diligence by Patent Agents results in patent applications being abandoned or lapsed. The lack of diligence may trigger the mandatory provisions of the Act, thereby resulting in abandonment of the application itself, without further scope for revival. This lack of due diligence could be termed as a ‘misconduct in his professional capacity.’
As per Rule 114 under Chapter XV of the Patents Rules, 2003, Patent Agents can be disqualified and removed if the Patent Agent is found guilty of ‘misconduct’ in his ‘professional capacity’.
However, there are no Rules of Conduct for Patent Agents, and the term “misconduct” is not defined either under the Patent Act or the Patent Rules, which is an oversight in the system.
The Court perused and discussed the code of conduct for other professionals like advocates and chartered accountants, and observed that there is an imminent need for a similar framework to be established for regulating the conduct of IP Agents and for providing a mechanism for lodging a complaint against an IP agent. There was a pressing need for prescribing factors that would constitute misconduct, for setting out the procedure of complaint and its dealings, and also for prescribing penalties and punishments.
The Court also opined that a Code of Conduct must be prescribed separately for the different levels of duties of patent agents:
Duties to their clients/ applicants of patents;
Duties towards the IP office;
Duty to society in general; and
Duty to courts if and when they appear and exercise the right of audience.
The said code of conduct should include the patent agents employed by partnerships, IP law firms, and even general practice law firms and should not be limited to only individual patent agents.
The Court has also noted that “misconduct” by the patent agents could include:
“The commission or omission of an act that constitutes a breach of ethical or professional obligations –
wherein such behavior, whether intentional or negligent, contravenes established standards of practice.
If the same causes harm to clients, diminishes their trust, compromises the patent agent’s integrity including failure to uphold the principles of honesty, morality, accountability, and professionalism.”
Source: Barandbench
