Sailing Troubled Waters: A Look at the Spiral of Controversies that the CGPDTM Has Fallen Into

[A big thanks to Mr. Prashant Reddy for his inputs on the post.]

Soon after Yogesh’s blog recent post (here) highlighting the change in the Head of the IT office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM) in light of a 27 August 2024 notification (pdf), it made sense to look at the broader issues that have been facing the CGPDTM. The aforementioned notification has come after the All India Patent Officer’s Welfare Association (AIPOWA) filed a Civil Writ Petition (WP) in the Delhi High Court (DHC) alleging arbitrary reallocation, withdrawal, and abandonment of patent applications and review petitions by the Information Technology (IT) Division of the CGPDTM (Case No. 8398/2024). Meanwhile, another writ petition lies in the DHC against the CGPDTM  by the AIPOWA, filed this August, challenging the appointment of Unnat P. Pandit as the CGPDTM (Case No. 11278/2024). Unfortunately, this isn’t the first instance that the CGPDTM has faced this much flak. The WPs only add to the existing perception of instability within the office. Much has been questioned about the institution over the years of its existence, and the details of these are what this post will go in-depth into.

AIPOWA’s Claims Against the CGDPTM Functioning

First things first, let’s see what are the issues that these WPs by AIPOWA in the DHC raise. AIPOWA is a non-profit organisation with the sole aim of safeguarding the welfare of the members, consisting of over 600 Group A service officers working as quasi-judicial officers in patent offices in Kolkata, Chennai, New Delhi and Mumbai. 

There are a total of two WPs pending between the same parties in the same court, but it’s currently not clear if they are interlinked or completely isolated from one another.

The first one (with reference to the picture above), is a WP that raised concerns about the alleged violation of Section 73(4) of the Indian Patent Act, 1970 by the IT Division of the CGPDTM. The WP claims that the IT department under the CGPDTM has been arbitrarily reallocating, withdrawing, and abandoning patent applications and review petitions, which undermines the Patent Officers’ ability to perform their quasi-judicial roles impartially. Although the system was designed for automatic allocation without human intervention, it has been overridden without the required written orders from the Controller, as mandated by Section 73(4). Reassigning electrical patent cases to controllers in unrelated fields based on Quality Control team emails, reallocating cases post-hearing without proper documentation, improperly transferring review petitions, and reviving refused applications without a review petition were some of the problems that the WP highlighted. In response, AIPOWA has asked the DPIIT to investigate these issues, impose stricter controls, and implement regular audits, highlighting inconsistencies with the automatic allocation system discussed in the Filo Edtech v Union of India case. The 10th September 2024 order (pdf) has rescheduled the matter to 14 January 2025. Given that this rescheduling was merely due to the paucity of time to take up the matter on that date, a 4-month delay seems a bit too lax.

On to the second one: It is a more recently filed WP, in the form of a Public interest Litigation (PIL), which challenges the appointment of the CGPDTMl. Some excerpts of the PIL were shared here by Ms. Jaya Bhatnagar. As someone trying to follow these hearings, it feels a bit like a wild goose chase at this point since the case keeps getting adjourned to the future. The 14 August Order (pdf) postponed the hearing to 27th August 2024, and the 27th August one (pdf) to 4 September. Interestingly, both the previous postponements were done at the behest of the Petitioner’s counsel and not the other way around. As an admittedly inexperienced law student, this does seem odd to me. However, I request readers who may understand better, to help explain in the comments if it is perhaps not so unusual. Nevertheless, the hearings on September 4 (pdf) seem to have provided substantive arguments regarding the validity of CGPDTM’s appointment, which will be discussed in the upcoming parts. The next hearing is listed for 8 October 2024.

Quo Warranto?: An Overview of PIL Challenging Validity of CGPDTM’s Appointment

The PIL for the second WP in itself is an interesting read. Filed under Article 226 of the Constitution, it is an ‘urgent application’ to the Registrar, DHC under the ground that the incumbent CGDPTM is not qualified to hold the post and was selected/nominated vide an arbitrary procedure without proper and effective advertisement for filling up the post. The PIL then provides a list of dates of events which I have recreated in a tabular manner for easier perusal: 

While the conclusion of these investigations remains to be seen, it is to be noted that this claim is not an isolated incident. Multiple allegations have surfaced repeatedly against the CGPDTM. The next section will focus on the impact of these allegations on the overall accountability of the CGPDTM’s office, extending beyond the two writ petitions and the recent notification concerning the change in the IT Department head.

Smells like Trouble: A Series of Blunders by the CGPDTM

In general, while irregularities in the Patent Examiners’ Exam by the NTA (here) were something that created a lot of uproar in March 2024, calling for feedback on the IP administration of the country in August 2024 (here) also reflected some positive workings of the CGPDTM. Nonetheless, it appears several other issues have arisen apart from these two writs. Looking at just the last two months, the Public Accounts Committee (PAC) chairperson had demanded corruption enquiries against the CGPDTM in March 2024 to the CVC (covered here). Thereafter, in August 2024, the CGPDTM faced scrutiny for delegating duties to contractual staff (discussed in a brilliant post by Md. Sabeeh Ahmad here), allowing them to issue examination reports, which led to the need for revalidation of these orders through a newly implemented mechanism (legal concerns surrounding such delegation were discussed here). Additionally, this isn’t the first instance of conflict between AIPOWA and the CGPDTM. AIPOWA recently challenged the CGPDTM’s issuance of 259 show cause notices against IPO officers and exposed alleged administrative lapses involving the inflated purchase of 1,200 personal computers for ₹9,99,75,600 (bid document here) in July 2024. Business line had reported that DPIIT has stated that it will examine the Controller General’s position and take further action as necessary.  However, the Ministry of Commerce subsequently withdrew the SCNs against such officers (discussed here). 

Now, in the proceedings held on September 4 for the second WP, UP Pandit was stripped of most of his powers by the Ministry, as reported by BusinessLine here (paywalled). Pandit’s legal team argued that the PIL lacked genuine public interest, noting that the Association had previously challenged various CGPDTM decisions, including SCNs issued to officers. It rather uncanny to observe that in a span of a week, two major position holders of the CGPDTM office have had their powers usurped. The 27 August notification has already appointed Subhash Chandra Karol, Director of DPIIT, as the Head of the IT office of the CGPDTM and the news reporting of the 4th September hearings reflect the restriction of Pandit’s powers. This stripping of powers by the Ministry raises serious concerns about the integrity of India’s IP administration in a broader sense and points to deeper systemic issues within the office responsible for overseeing the IP regime in the country. The stakes in this matter are far from local and the caution expressed by Justice Manmohan during the cases reflected the very same. He advised both parties to exercise caution in their statements, highlighting the global implications of the CGPDTM position.

Clearly, allegations against the CGPDTM are coming from all corners. While too early to anticipate the result of the pending WPs, keeping in mind the history of the indictment of the CGDPTM (by the Ministry for irregularities in computer purchases), there does lie a possibility that the post-holder may have indeed committed some of the errors or violations being claimed. However, there is also a larger context to consider: Aren’t these allegations particularly unusual? Have they been thoroughly investigated?

The recent allegations seem rather vague and the evidence that the Plaintiff may submit to the Court will be determinative to assess how strongly the allegations lie. It is likely that these WPs might be a reaction to underlying tensions at the Patent Office. It appears that Pandit has upset the staff, who are now retaliating—historically, they’ve even sued CGPDTM for increasing their workload. Readers may recall Dr. Basheer’s posts a over a similar issue (here and here). In short – In 2008, a promotion spree led to many examiners being promoted to Controllers, disrupting the Examiner-to-Controller ratio and causing a shortage of examiners. The new Controllers were unwilling to handle examination duties, prompting CG PH Kurian to require Assistant Controllers to step in. This mandate was challenged by some Assistant Controllers and stayed by the Central Administrative Tribunal (CAT). 

It’s also curious that the validity of the CGPDTM’s appointment is being challenged now, years after the fact. He took charge back in April 2022. While those matters with judicial decisions backing them can still be seen to be actual blunders; for those that lie sub-judice, it is difficult to truly determine how much of this is just smoke without fire.