On July 8, Ananthakrishnan G in the Indian Express reported that the Ministry of Commerce (MoC) has ordered withdrawal of the 159 show cause notices issued to different officers of the Indian Patent Office. This move seemingly comes after the proceedings at the Central Administrative Tribunal (CAT) where the All India Patent Officers Welfare Association (the petitioner) had argued that the power to issue these show cause notices lies with the MoC’s Department for Promotion of Industry and Internal Trade (DPIIT) and not the Controller General of Patent, Designs and Trademarks (CGPDTM). Though the CAT had not made a decision on who had the power, it had ordered that the DPIIT shall expeditiously decide on the representation made by the All India Patent Officers Welfare Association (applicants) and pass a speaking order.
Apart from the arguing that the CGPDTM lacks the authority to issue such notices, the petitioners had also argued that the notices alleging poor performances by the officers, were vague and there was no clear criteria to assess the performance of the officers.
Though I am yet to get hold of the order by the Ministry, as reported above the Ministry via an office memorandum issued on June 26, dismissed these show cause notices for not being “in line with the line of established procedure”. From this limited information, it looks like the Ministry has accepted the applicant’s assertion about CGPDTM not being the right authority to issue these notices. In this post, I’ll briefly touch upon the issue of who can initiate such disciplinary proceedings against the officers of the IPO and will focus on a larger problem raised by the applicants about examination of the patent officers’ performance.
With Whom Does the Authority to Initiate Disciplinary Proceedings Vest?
The notices (issued on different dates) cite poor performance, insubordination and violation of the conduct rules of the office, and ask why disciplinary proceedings should not be initiated against them and why their demotion to their previous designation should not be recommended to the Govt. of India.
The petitioner argued that the power to conduct any disciplinary action can only be taken up by the DPIIT and the CGPDTM is not the competent authority for such actions. The petition does not specify under which law or rule are they deriving this from and instead relied on a RTI reply (pdf) by the DPIIT on the question of the competent authority. The petitioner thus stated that as per this RTI response it was accepted that the CGPDTM was not the competent authority. However, the said RTI reply by DPIIT only states that the query has been transferred to the CGPDTM for their response. So the question pops up, where is this assertion coming from?
Under Section 73 of the Patents Act, the Central Government appoints the examiners and other officers of the Indian Patent Office, and the officers are supposed to function under the superintendence and directions of the Controller General. But it doesn’t specify anything about disciplinary actions against these officers, although logically the disciplinary actions should be taken by the appointing authority itself. This also follows from Rule 12 (2)(a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which states that appointing authority or any authority higher than the appointing authority can act as the disciplinary authority.
Allegations of Poor Performance by Some of the Patent Officers
Moving to the allegations in the show cause notices, for a better understanding of the allegations made against the officers, I have prepared a table explaining the particulars of each set of these Show Cause notices (annexed to the petition), below:-
| Date of Issuance | Issued to | Issued because of |
| 31/10/2023 | Issued to 86 Group A Patent Officers | Poor performance during Apr 23-Oct 23. The average performance ratings for these officers range from 2% to 30% |
| 19/12/2023 and 20/12/2023 | Issued individually to 168 officers incidentally bearing the same letter number. | For poor performance during the current financial year. The average performance ratings for these officers range from 6% To 58% |
| 27/03/2024 | Issued to an Assistant Controller of Patents and Designs | For passing a non-reasoned refusal order without considering the material available on record. |
| 27/3/2024 and 19/4/2024 | Issued to an Asst. Controller of Patents and Designs | For not accepting and objecting to a General Power of Attorney in a case (notice dt. 27/03/2024) and for availing special casual leave for 2 days, without the permission of the Controlling Officer (notice dt. 19/4/2024). |
| 19/12/2023 and22/3/2024 | Issued to a Deputy Controller of Patents and Designs | For insubordination and misbehavior during an unsanctioned meeting with Director (Estt.) (notice dt. 19/12/2023) and for violation of the conduct rules by changing stances before the Court in an appeal against an order passed by the officer (notice dt. 22/3/2024) |
| 18/3/2024 | Issued to an Examiner of Patents and Designs | For poor performance since the beginning of his services at the office. |
Some of these show cause notices do pertain to problematic/ objectionable actions by the officers and prima facie merits some response/ justifications from the concerned officers. (Especially the ones alleging officers passing unreasoned orders, delaying judicial process, and creating a ruckus in a superior officer’s office.) However, most of these notices pertain to “poor performance” by the relevant officers.
How are the Examiners and Other Officers Examined?
This brings us to the question of how is a patent officer’s performance assessed? By Office Order 34 of 2016 (pdf), “Targets” are set for different Officers. These targets are :-
Examiners
- Examination of new applications: 15 per month
- Examination of amended applications: 15 per month
Note: One ISA/ IPEA application will be considered equal to 3 FERs
Controllers
- 45 FERs to be issued per month.
- 30 applications should be disposed of, excluding abandoned cases.
For assessment of work output a grading system is in place, according to which:-
- If the output is more than 90%, then the grading is between 8 and 10.
- If the output is between 80% to 90%, then the grading is between 6 and less than 8.
- If the output is between 70% to 80%, then the grading is between 4 and less than 6.
- If the output is less than 70, then the grading is below 4.
Therefore, according to most of these show cause notices, these officers were falling below grade 4 in terms of their performance. The issue of targets for examiners has always been a bone of contention for the Indian patent office. It has been previously reported that the patent office is functioning at a rate of dealing with 360 files per year while its counterparts from developed countries are handling 100 files. Interested readers can also refer to posts by Rajiv Kr. Choudhary (here) and Prof. Basheer (here), on this issue. The petition points out that previously another petition was filed before the CAT alleging that these targets were excessive. Though the CAT didn’t pass an order on merits, it directed the CGPDTM to decide on the issue expeditiously (pdf). Later, on November 11, 2023 a Committee was constituted to review the above office order, which was supposed to submit its report by November 30 (Please note: I was not able to find the report on the Patent Office website. In case anyone has an update about this, please share the same with us.) Interestingly, as per the Office Order constituting the above Committee, this review was being done not because of the above directions by the CAT but because no revision was made to the 2016 Office Order for more than 5 years.
Need to Prioritize Quality over Quantity!
Leaving aside the issue of whether these quotas are high or low, one fundamental question that needs to be discussed here is whether the quota/ target system to measure efficiency of an officer is accurate or not. Concerns around the quality of the assessment undertaken by the Patent Office have come to the attention of courts (see here, and here) and often judges have not minced their words in expressing their disappointment with the quality of orders passed by the Patent Office. It is pertinent to note that in all these cases an appeal was filed before the Court against an order rejecting the patent application. A quick search on IndianKanoon highlights that from June 2022 to June 2024, around 60 remand orders have been passed by different High Courts.
These cases reached the High Courts only after aggrieved applicants filed appeals against the rejection orders by the Patent Office, or orders whereby the applications were deemed abandoned. Later when the Courts took up these appeals, they were set aside for being non-speaking or for being inaccurate and the Patent Office was asked to consider the matters afresh. This makes one wonder if these orders were in favor of grants, what are the odds of someone filing such an appeal against those orders? Perhaps not much because in that situation there is no aggrieved party per se (except the larger public of course).
With evidence suggesting that the bigger problem here is supposed to be the quality of orders passed by the Patent Office, setting up targets/ quotas inadvertently pushes a (presumably) overburdened officer to cut corners and opt for the easiest/ quickest way out. For instance, if the performance of an officer is to be evaluated on the basis of FER issued, applications disposed and other such numerical metrics, it may just lead them to grant a patent without proper examination. This somewhat makes it easy for them since there may not be any aggrieved party, complaining against such grants (unless there is an opposition filed, filing which is now a tough nut to crack!). This was seen recently when an officer took a complete U-turn on their previous stances and granted a patent merely by passing a 5 line order without any deliberation or discussion on their previous objections to granting a patent.
With the DPIIT order in picture, I hope that the broader problem about the lack of a robust mechanism to assess the performance of the patent office is not forgotten. Instead the entire episode should serve as a reminder, stressing the need for formulating reforms, transparently, making the officers accountable for their performances.
A big thanks to an anonymous reader for sharing the petition with us. Also, thanks to Swaraj for his inputs, and to Rishabh Deshpande for his research assistance.