Journal of Intellectual Property Rights

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Legal and Administerial Overreach by IPO while Considering Proof of Right Requirement


Affiliations
1 The National University of Advanced Legal Studies, Kalamassery, Kochi, Kerala 683 503,, India
2 Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, West Bengal 721 302,, India

India being a dualist country has to domesticate treaty obligations to enforce the same at domestic level by enacting statutes, which in turn must be construed in the light of the parent treaty. This paper introspects the complexity in identifying the applicable rule concerning the Proof of Right requirement for Indian National Phase Applications under Patent Cooperation Treaty (PCT) Rule 4.17. It goes on to highlight the incongruity between the PCT regulations and the domestic law as interpreted and applied by the Indian Patent Office (IPO). A comparative study of legal positions in other countriesare also included for a better understanding of approaches by foreign patent officetowards implementing PCT obligations concerning Proof of Right. In essence, this paper sheds light on how the IPO’s demand for proof of right contradicts with several provisions of the PCT Regulations, the recent PCT Applicant’s Guide for the national phase and concludes by mooting some suggestions to resolve the issue.
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  • Legal and Administerial Overreach by IPO while Considering Proof of Right Requirement

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Authors

Christy C. Bose
The National University of Advanced Legal Studies, Kalamassery, Kochi, Kerala 683 503,, India
V. P. Akhila
Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, West Bengal 721 302,, India

Abstract


India being a dualist country has to domesticate treaty obligations to enforce the same at domestic level by enacting statutes, which in turn must be construed in the light of the parent treaty. This paper introspects the complexity in identifying the applicable rule concerning the Proof of Right requirement for Indian National Phase Applications under Patent Cooperation Treaty (PCT) Rule 4.17. It goes on to highlight the incongruity between the PCT regulations and the domestic law as interpreted and applied by the Indian Patent Office (IPO). A comparative study of legal positions in other countriesare also included for a better understanding of approaches by foreign patent officetowards implementing PCT obligations concerning Proof of Right. In essence, this paper sheds light on how the IPO’s demand for proof of right contradicts with several provisions of the PCT Regulations, the recent PCT Applicant’s Guide for the national phase and concludes by mooting some suggestions to resolve the issue.