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

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 also included for a better understanding of approaches by foreign patent office towards 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.