In Pursuit of the Greener Grass:-

Parliamentary Defections and the Tenth Schedule

(By Saiju S., Asst. Public Prosecutor, Ernakulam)

Survey any literature or court pronouncements on parliamentary defections in India, to discern that the term defection is oft-preceded by an adjective. The ‘evil’ of defection. It is indeed political infidelity. Does the law, the Tenth Schedule a.k.a. anti-defection law have the claw and teeth to take on the evil effectively and with sufficient deterrence?

In a multi-party democracy like ours, the sizeable chunk of the electorate exercises franchise in favour of the political party contesting, often oblivious to the aura or charisma of the candidates, be it the Modi, the Gandhi scion, the Kejriwal or any political heavyweight for that matter. (Not to say that the attributes of candidates are not factors at all. They have been reckoning factors, very important and on very many occasions decisive too). The political parties gaining public acceptance produce MP’s, MLA’s and MLC’s.

The ungrateful bunch of people’s representatives, after their entering the legislative chambers upon winning from a party ticket unconscientiously shift their allegiance to what they find as a more lucrative political zone. To insulate themselves against the possible disqualification which the anti-defection law provides, they take the dubious ‘merger’ route, a merger which the original political party never gives a thought about. The political party which set them up as candidates continues its predominance in the politics of the country or the State concerned, regardless of the merger. The avaricious two-third legislators masterminding the merger of the sponsor party continue as legislators, rallying behind the new party and save their membership in the house, despite their deed constituting defection of the first degree, de facto but not de jure. And it has the name democracy.

The law stood in awe of it. Our courts nonchalantly acquiesced to such mergers. And result? The sponsoring political party is ditched. The numerical equations in legislatures are redrawn overnight against the will of the electorate. The government of the day fails in the game of numbers and is thrown out. Crossovers, horse trading and resort politics become the new norms. The “Aaya Ram Gaya Ram” is back in vogue. And the world’s largest democracy is hyperventilating.

In this backdrop, the following issues become germane for judicial consideration.

1. Is it for the two-third majority of a certain legislature party to decide as to merger of that party? What is a merger in terms of the Tenth Schedule?

2. How can a merger declared by not less than two-third of the Legislature Party but not effected by the Original Political Party/Sponsor Party beyond the house of legislature insulate the legislators constituting the said two-third from the consequences of Tenth Schedule to the Constitution of India?

3. The words “have agreed to such merger’ in paragraph 4(2) of the Tenth Schedule to the Constitution - what do they mean? Does it allow a merger to be engineered by two-third of the legislature party?

For the above concerns and furthermore, the anti-defection needs to be revisited or atleast interpreted, keeping in mind the elementary principle that Tenth Schedule was introduced to contain defections and not as a facilitator to defections.

Weeding out Patent Trolls : Issues and Challenges

(By Dr. Raju Narayana Swamy, IAS)

Patent Troll : The Concept

Patent Troll is a negative term. First coined in the 1990s, the term has no legal definition. It is also called non-practicing entity or nonproducing entity (NPE) or patent holding company or patent shark. The term arose in reference to trolls in Norwegian folk tails who extract tolls from travellers passing over bridges. It is generally attributed to Peter Detkin, former Assistant Counsel of Intel who explained the concept as “companies that buy rather than create patents and then extract disproportionately high license fees by threatening expensive litigation in the alternative.”[1] Some others are of the view that the term originated from an educational video called the Patents Video produced in 1994 by Paula Natasha Chavez, a US IP Law Attorney. Britannica Encyclopaedia defines patent troll as a “pejorative term for a company found most open in the American information technology industry that uses a portfolio of patents not to produce products but solely to collect licensing fees or settlement on patent infringement from other companies.”[2]

Put in simple terms, patent trolls are entities that neither develop new technologies nor use technologies to provide goods or services to the market. They accumulate patents relate to one area, do not produce any products, sue a large a number of defendants  together and claim a percent of the total revenue from the product. Even though their patent may cover a small area of technology, the award granted can amount to millions for a successful product. Thus trolls are extortive entities conducting deceptive abuse and possibly unlawful behaviour in connection with patent litigation. The fact that whenever an individual or company gets sued by a troll, the burden of proof for not infringing the patent is on the defendant compounds the problem.

Patent trolls acquire patents mainly for licensing purposes.[3] They neither use the patent for their own production nor for follow-up innovations.[4] Thus trolling is the abuse of exclusive rights where by patent holders themselves do not use their products and further prevent others from creating similar ones.[5] In fact, there are four broad business models followed by trolls:

a) Trolls could be companies which purchase controversial patents from others merely for the purpose of asserting them.

b) A troll could be a company that originally sold products, but has either completely or partially closed its operations.

c) Trolls could be the agents that assert patents on behalf of patent owners.

d) Trolls could be law firms that help clients to exploit their IP for which they take contingency fees[6]

Buying a patent (usually from a bankrupt company at an auction) with the intent of suing a competing company is a usual modus operandi. One analogy for a patent trolls actions would be earning the right to charge tolls on a road without performing any improvement to the roadway. Another analogy is that unlike an innovator who uses the land to raise a crop, a troll merely aims at excluding people there from. Using a patent to collect money from other companies predates the invention of the computer. American Inventor George Selden is frequently cited as an early example of a patent troll.  From 1903-1911, Selden, who never built a car, used his patent on the automobiles to collect royalties from other automobile companies. Ray Niro is another well known patent troll. In 18 years of patent litigation, he sued 235 companies and made a fortune of 315 million dollars. Patent trolls are a menace and impede the innovation environment in a country. They use patents as lawful weapons. The usual strategy is to maintain a basket of patents till the technology matures and then start litigation. The patents they register are broad and unclear so that multiple companies can be targeted. Trolls use their patent titles to try to compel  individuals, businesses and non profits to pay them fees for use of ordinary items of daily use (like office equipments, printers, Wi-Fi routers) and even go to the extent of threatening mobile phone apps developers. Patents are not that easy to understand, litigation takes time and as companies are left with no other solution, they end up signing a non-disclosure agreement with the troll and by paying them a part of the revenue accordingly.

It needs to be mention here that when universities or non-profit research institutions file claims for protection of unutilized patents, it is not considered an act of trolling. It also needs to be pointed out that a producer need not actually practice the patent to avoid being called a troll. The crucial question is whether it is enforcing its patent in a market in which it participates. As an example, a patentee might manufacture a product that can either use a widget or gadget. The patentee has patents on both, but decides to use only widgets in its products.  While the patentee does not practice the gadget patents, it is not a troll.

Policing of patent trolls is remarkably tricky as a game power from the strength of the very patent protection regimes they reside in. The situation is even more complicated as trolls are usually firms consisting of patent professionals and lawyers with pooled experience in patent law and litigation as the trolls threaten litigation, the alleged infringer even if in  a position to defend himself may prefer to settle the matter out of court to avoid the time and cost involved in litigation. Usually the license fee demanded by the troll is less than the cost and effort involved in litigation and the alleged infringer gives in to the demands of the troll.  This vicious cycle continues as the troll can use this money to buy more patents and in the name of infringement target more companies.[7]

Patent Trolls in the US

The recent case of Labrador Diagnostics LLC v. Biofire Diagnostics LLC etal filed in the US District Court for the District of Delaware against the corona virus tests over the allegation of patent infringement reveals the dark side of IP laws in that country. In this case a patent troll (Labrador Diagnostics LLC) alleged infringement against the companies making and distributing virus tests throughout the country. Appallingly, such actions are rampant where companies like Labrador Diagnostics take advantage of the law and keep the masses from getting access to COVID-19 tests and treatments.

Mention must also be made here of the patent infringement suit filed by NTP

(a patent troll) in a US District Court against Apple, Google, Microsoft, Motorola, HTC and LG alleging that the companies are liable for infringing eight of its patent relating to sending emails over wireless network. Add to these the fact that NTP had earlier won a 612 million dollar damage award against Research in Motion which sells blackberry devices and the hurdles posed to large companies can very well be imagined.

Patent trolling is a growing problem in the US – particularly in the IT industry – mainly because of the judicial system and the laws. First, US is the hub for technological innovation and the Patent Office is flooded with applications. Due to the sheer volume and time constraint, patent examiners grant a patent when there is a doubt. This gives room for trolls to file broad and vague patents. Second, the US legal system states that the respective parties must bear their own cost. This is diametrically opposite the situation in many other jurisdictions, where the losing party covers the cost of litigation of the winning party – wholly or partly. This is less of a deterrent for trolls to take part in excessive litigation. However it needs to be mentioned here that in April 2016 the final ruling in the court case Octane Fitness LLC v. ICON Health & Fitness Inc filed in the US Supreme Court made it easier for the court to impose legal expenses of both parties on the losers in patent claim court cases in the future.

Third, the US traditionally follows a system in which the first person to invent a product was entitled to a patent unlike in many countries where the first person to file a patent is the one who receives it. Thus in the American system, someone who invented a product but neither patented nor manufactured it could bring a suit against a later inventor who was more successful at making and patenting the same product. However with the US moving to a first file system in 2011, the activities of patent trolls as a backdrop of the first file system have been largely contained. Fourth, relative unavailability of compulsory licensing works to the benefit of trolls.

Patent trolls may also take advantage of a judicial reluctance to employ the equitable doctrines of laches and estoppel when considering infringement claims. Also injunctive relief in US is very generous. After eBay v. Merc Exchange, there may be a shift towards a more restrained use of injunctions, but this is not necessarily the case.

Mention needs to be made here that patent trolling in US may also involve venue shopping. A classic example is the report that 45% of the patent cases in 2015 were filed in the Eastern District of Texas. This must be read with a fact that the said district was home to a judge with both patent expertise and a track record of favouring plaintiffs. This practice has been curbed to a certain extent by the US Supreme Court’s final ruling in the 2017 case TC Heartland LLC v. Craft Foods Group Brands LLC.[8] This decision brings a sigh of relief as many cases can now be moved away from plaintiff – friendly districts to much more neutral districts where the defendants stand a chance of having a fairer outcome.

No discussion on patent trolls in the US would be complete without a mention on their decline during the period from 2013-2017 which was largely attributable to post-patent grant review mechanisms. Moreover the Supreme Court’s decision in Alice Corp v. CLS Bank Internal affords the much–needed relief by allowing defendants to challenge overbroad, abstract patents and have suits decided early. But all is not well today. Currently there is an increase in abusive litigation as the review mechanisms are under threat. PTAB for instance is increasingly exercising discretion and refusing to consider meritorious IPR’s. The potential for abuse of this discretion has increased in the wake of the Supreme Court’s decision in United States v. Arthrex Inc. In a fight for ruling, the Court afforded the PTO Director of the USPTO the ability to review and overrule the decisions of the patent judges of the PTAB.

Critics are of the view the trend of increase in patent troll litigation can be reversed only by focusing on the quality and balance in patent law. One way to accomplish this is to make use of the information about the quality of the patent that every prosecution generates – the patent file history. Called the file wrapper, the prosecution history of each patent is a record of all communications and documentation involved in the patent examination process. If that wrapper is filled with examiner’s repeated rejections to certain claims and the inventor repeatedly appeals those rejections, it suggests low quality. Needless to say, a defendant should be allowed to point to such a wrapper early in the case to rebut the patent’s inherent presumption of validity. Better yet, such a wrapper could trigger withdrawal of the presumption of validity which the plaintiff would then have to affirmatively plead.

Patent Trolls and the European Patent System

The European patent system holds both incentives and disincentives for patent trolls. The system is unique in that there is a central patent office for grant of patents which are then valid across all European Patent Convention member states, but disposal of infringement suits is national rather than centralised. Thus if a European patent is infringed anywhere in Germany and the German Courts uphold the infringement, it does not imply that the same patent will be deemed infringed automatically in other member nations too. This is a big disincentive for a troll. It is also worth mentioning that the potential costs of litigating in Europe are lower in quantum vis–a–vis US. This prima facie seems like a potential incentive for trolling, but may also translate in to the fact that infringers would be more willing to take up litigation and fight it out rather than settle out of Court. Even the damages that are awarded in Europe are a lot lower as compared to US. Thus a patent owner is less likely to initiate litigation against an assumed infringer in Europe as he will not get significant damages out of the proceedings even if he won. Also contingency fee is not allowed in Europe. Moreover, stringent laws in EU make it almost impossible for patent trolls to exist. But EU is not free from patent trolls. This is a result of the imbalances in the European patent system which PAE’s are looking to exploit.  These imbalances include

a) injunctions automatically awarded upon a finding of infringement

b) low quality patents &

c) lack of transparency in Court proceedings

In fact majority of the infringement cases are filed in Germany and France. Statistics show that in Germany 20% of all law suits are patent infringement law suits. Factually trolling involving European entities may be evinced by way of mentioning the dispute between Infincon, a German chip manufacturer and Rambus, a US memory manufacturer. The end result was a settlement for $ 23.5 million to be paid by Infincon to Rambus for two years.

The Indian Legal System and  Patent Trolls

Patent trolling was quite prevalent in India in the information technology and communication sectors prior to the enactment of the amendment in 2005, but it sharply declined after the amendment. Though the Patents Act 1970 does not specifically prohibit patent trolls[9], this problem is curbed through several provisions in the Act. Many argue that US and EU could learn from India and adopt these safeguards which include.

Post-grant opposition

As per Section 25(2), any person interested can file a post-grant opposition within 12 months of the date of publication of the grant of a patent on any of the grounds specified therein by giving a notice of opposition to the Controller. Thus even after the grant of a patent it can be challenged. This post-grant opposition is an inbuilt hindrance to the menace of patent trolls.

IPAB (Intellectual Property Appellate Board)

This specialised board ensures speedy disposal of IP disputes and reduces the cost of litigation. This allows small companies targeted by patent trolls to defend themselves without worrying about the high cost involved therein. Mention must be made here of the judgment IPAB revoking two patents belonging to Bharat Bhogilal Patel in the case of M/s Aditi Manufacturing Co. M/s. Bharat Bhogilal Patel.[10] This patentee can be regarded as a classic patent troll and held two patents – one for a process of manufacturing engraved design articles on metals or non-metals and another for an improved laser marking and engraving machine. The IPAB held as follows: “In the present case, prior arts have the features of the invention and there is nothing new in the features that have been claimed as new.” The highlight of the case is that the patent troll involved did not file any civil suit for infringement, but instance filed complaints with the Customs authorities at various ports of entry requesting them to seize the import consignments on the ground that they infringed their patents.

In a similar case, the IPAB revoked a patent belonging to one Ramkumar in the case of Spice and Samsung v. Somasundar Ramkumar.[11] The patent related to mobile phones with a plurality of SIM cards allocated to different communication networks and revocation was sought u/S. 64(1) of the Patents Act 1970. The IPAB held that not only the invention was anticipated by prior art, but also that the amendments carried out during the prosecution of the application in specification, drawings and claims extended the scope of the disclosed matter which is particularly prohibited by Section 59. The applicants were also able to establish through various prior art references the obviousness in the Respondent’s patent. It is worth mentioning here that Ramkumar can be considered as a classic patent troll.

Section 13(4) of the Patents Act

This provision expressly states that the validity of a patent is not guaranteed by its grant.[12] As there is no presumptions as to the validity of a patent, the burden of proving it in a patent infringement suit vests in the patentee. This is likely to discourage trolls.

Compulsory License

The essence of this provision is that in case of non-working of a patent, the public is deprived of its use and benefits. A period of three years from granting of patent is given beyond which an application can be made for grant of compulsory license. This mechanism reprimands trolls that fail to exploit their patents or put them to work. But criticisms are galore that this provision gives patent trolls a time frame of three years to purchase a patent and harass companies with law suits.

India’s requirements for domestic working of a patent are highlighted in Section 83. In fact, the practice of abuse of patent rights through trolls is discussed u/S.83(b). India is also of the view that the reasonable requirements of the public are to be taken into consideration and are deemed unsatisfied (Section 84(1)(a)) if the patented invention is not being worked in the territory of India or is not being worked to the fullest extent that is reasonably practicable (Section 84(7)(d)). The controller also has the power u/S.146 to give a written notice to the patentee or licensee requiring them to furnish necessary information regarding the extent to which the patented invention has been commercially worked in India. In case of non-compliance of this requirement, the Act provides for the imposition of a fine upto INR 10 lakhs on the holder (Section 122(b)). In order to check the working of patents, the Act requires a patent holder to file an annual statement regarding the working thereof. Patent holders who fail to file such a statement may be liable for a fine and /or imprisonment.

No patent protection to software

The implementation of the Patent Amendment Act, 2005 excludes a huge area for trolling by not providing patent protection to software (including embedded software) which is a common subject matter prone to trolling activity.

Section 115 of Patents Act

This Section allows appointment of scientific advisors with deep technological knowledge for speedy trials. It also helps the Courts to identify dubious patents and to revoke them.

Section 3(d) of Patents Act

Section 3(d) makes it very difficult for patent trolls to get dubious patents there by resorting to evergreening.[13]

Add to these the facts that Indian Courts are not generally patent friendly (and hence do not grant injunctions easily) and that after succeeding in a case the damages granted are often insufficient and the picture is complete to the extent that the business model of patent trolling is difficult to sustain in the Indian legal landscape. A lacuna in the Indian legal system often pointed out by critics needs special mention here – namely the absence of an open post grant review. If such a review is judiciously implemented at the time of renewal of a patent or at any time that a patent is sold, it can go a long way in improving the system so as to make sure that the public is not hoarded for exploitation by patent trolls. Moreover to control the chaos caused by trolling, the quality of patent examination should be enhanced to avoid unnecessary patent authorisations. Steps such as implementing patent concentration strategy and perfecting the patent trading market can also go a long way. Another recommended measure is the introduction of the provision for joint/class litigation in the Patents Act similar to Section 245 of the Companies Act 2013 so that the entities targeted by trolls can collectively file a suit there by reducing the per head cost. Government can also think of creating a public fund where by parties who can substantially prove that they are victims of trolling can be given funds to file a suit at the proper forum. Sources of income in that fund may by no means be limited to Government grants, but can also include penalty imposed on trolls. Needless to stay, patent trolls can also be curbed by not entering in to agreements for licensing or purchasing patents with unverified parties.

Patent Trolls and Defensive Patenting

The rise of patent trolls has lead to a practice called defensive patenting wherein companies amass portfolios of patents to protect themselves against law suits. A classic example is the announcement of Google in the year 2011 to buy the cell phone company Motorola Mobility. As a key factor in the acquisition, Google specifically cited its wish to use Motorola’s thousands of patents to protect its own mobile operating system Android from possible legal action.

Conclusion

Patent trolls target companies of various types including manufactures, distributors or retailers in certain industries. But it is a small company devoid of deep pockets that are primarily targeted. For instance one California company by name Pangea Intellectual Properties claimed that its patents were infringed by websites that possess financial information that customers enter online. In fact patent trolls very often pick up low quality patents and take advantage of asymmetries in the economics of litigation to make quick cash. An oft quoted case is that of Bitmovin which has mean on the receiving end of several of these dubious suits which are a very real threat to innovators and other start-ups. Sometimes they remain stagnant and wait for some other company to develop the same technology before proceeding to sue them for infringement.

It must be mention here that NPEs reject the term patent troll and claim that they are actually protecting the system by ensuring that patent holders receive the monitory rewards that are due to them. They defend themselves on the grounds that they actually promote invention by adding liquidity, absorbing some of the risk otherwise borne by inventors and getting more royalties for small inventors.[14] But the reality is otherwise. For instance, American economists are of the opinion that investors lost approximately $500 billion to patent trolls from 1990 to 2010 based on the decrease in value of company’s stock after they have been sued by NPEs. Microsoft says that it typically faces about 60 pending PAE infringement claims costing it tens of millions of dollars every year to defend. Google, Blackberry, Earthlink and Red Hat detail that there litigation defends costs have gone up by 400% as patents trolls are filing four times as many law suits in 2018 as compared to 2005. Through these abusive practices they costs uncertainty for businesses, add redundant costs, scare investors and even force businesses to shut down. It needs to be mention here that the concept of troll is by no means confined to patents, but extends to copyrights as well. Such a company’s business model would typically consists of filing suits against bloggers, artists, freelance journalists and other small-fry individual users for alleged unauthorised reproduction of works. A classic example is Righthaven LLC, a copyright holding company founded in 2010. Its modus operandi consists of entering in to agreements with various publishers (often localised periodicals) and subsequently filing suits for copyright infringement against website owners for unauthorised reproduction of the periodical’s photographs and other contents. Righthaven then proceeds to demand $ 75000 from each alleged infringer in lieu of court action. This coupled with Righthaven’s propensity to swiftly settle cases and high expenses in defending such actions leads to a highly profitable business model – with Righthaven footing no more than the cost of the paper on which the initial demand was made.

But the reality is that such business models are not only inherently exploit it and abusive of the legal process but also question the very theoretical justifications that are usually put forth to support the treatment of IP as traditional tangible property. These entities function in a manner seemingly independent of the three dominant strains of property theory- the Labour, Utilitarian and Personality justifications. Righthaven being a non-innovative entity does not labour to create the good that is sort to be protected (viz) the creative works. Moreover its conduct violates Locke’s Proviso in that there is net harm being caused to innovation in general and to society – through curtailments to free speech and expression caused by the threat of litigation. In fact, a copyright aggregator like Righthaven infringes on the fair use doctrine and leads to a chilling effect. The result is a negative impact on social welfare and completing the circle.

It is heartening to note that the US courts have recently started to recognise that these entities have no legal basis for continued functioning. This lack of basis extends to jurisprudential and historical realms also. In Righthaven v. Democratic Underground case, for instance (US District of Nevada Court) it was found that Righthaven has no standing to sue for copyright infringement. A similar ruling of a federal judge in Colorado has put an end to all 57 proceedings that Righthaven has initiated in that State. In fact, Righthaven is now virtually defunct. The company is now insolvent having failed to pay legal costs owed to the defendants in Righthaven v. Thomas Die Blase and Righthaven v. Wayne Hoehn. Its domain name was auctioned by the receiver to satisfy the company’s debtors. The company has been criticised for bullying internet users in to unnecessary settlements and has been fined for making material misrepresentations to federal courts. Needless to say, it can be characterised as a capitalism - induced manifestation of corporate greed. And that explains the twin reasons why trolls should not be accorded protection by law – first being the violation of the social contract and the second being skewing public-private interest balance unjustly. The need of the hour is to weed out the concept of trolls by redefining IP rights and obligations. This course for reformation in both the legislative and judicial branches.

References

1.David B.Y. et al “The new patent intermediaries: platforms, defensive aggregators and super-aggregators” Journal of Economic Perspectives, 27(2013).

2. Peter N.D, “ Levelling the Patent Playing Field” Review of Intellectual Property Law, 6(4),2007.

3. Nicholas Varchaver “ Who’s afraid of Nathan Mybrvold?” Fortune Magazine, July 10,2006.

4. Axel H et al, “Patent trolls, litigation and the market for innovation”, SSR Electronic Journal, 2014.

5. “Are the Patent Trolls  here to get us?” https:/ /hoiberg.com/omhoeiberg /artikler/are-the-         patent-trolls –here-to-get-us

6. Mueller J., “The Tiger Awakens: The Tumultuous Transformation of India’s Patent System & the Rise of Indian Pharmaceutical Innovation” University of Pittsburgh Law Review 68(2007).

7. Barker D., “ Troll or No Troll? Policing Patent Usage with an Open Post-Grant Review” Duke Law & Technology Review 9,11(2005).

(End Notes)

1. Jennifer Gregory, The Troll Next Door, 6 J.Marshal  Rev Intell.Prop.L (2007).

2. Eric Gregorson, Patent Trolls, Encyclopaedia Britannica.

3. John M Golden, Patent Trolls and Patent Remedies, 85 Tex L Rev 2111-2162(2007)

4. Axel H etal, Patent Trolls, Litigation and the Market for Innovation, SSRN Electronic Journal (2014).

5. Rantanen J, ‘Slaying the Troll: Litigation as an Effective Strategy against Patent Threats’ 23 Santa Clara Computer Hardware & Technology Law Journal 43 (2006).

6. Beyers, J.,Perspective-Rise of the Patent Trolls http://news.com/rise+of+the+patent+trolls/2010-1071.

7. Rajkumar V, The Effect of Patent Trolls on Innovations: a Multi-Jurisdictional  Analysis, 1 Indian Journal of Intellectual  Property Law (2008).

8. 581 US 2017.

9. Indian Patent Act does not even mention the term patent trolls

10. MP Nos. 41&42 of 2012 in TRA/05 of 2008/PT/MUM & TRA/06 of 2008/PT/MUM.

11. ORA/17 of 2009/PT/CH & ORA/31 of 2009/PT/CH.

12. This section reads as follows:- The examination and investigations required under Section 12 and this section shall not be deemed in any way to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer thereof by reason of, or in connection with, any such examination or investigation or any report or other proceedings consequent thereon.

13. Section 3(d) says that the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant, is not patentable.

14. Nathan M: The big idea: Funding Eureka ! Harvard Business Review 88(3), 2010.

Future Prospects, Grammarly and Redundancy

(By Jacob Abraham, Advocate, High Court of Kerala)

Future prospects is a head under which compensation is awarded, Grammarly is the name of the software and the word redundancy means ‘the state of being not or no longer needed or useful’. At the first glance, one may think that they are unconnected words. When putting them in the right context, the strangeness of the caption of the article disappears.

English judgements still influence us, especially in the field of the law of torts. Dissimilarities in both the countries on several aspects were unfortunately ignored. One such aspect is the rate of inflation in both countries. Here it is very high and there it is negligible. This has resulted in compensation awarded in fatal and personal injury cases sometimes render illusory or rendering the amount of compensation awarded inadequate after a couple of years. To remedy this situation the honourable Apex Court invented a new head called “future prospects” and started adding compensation under this head. Earlier also compensation was awarded under the head with the same name but the situation covered was likely loss of promotions in the job in future, inability to pursue higher education, etc.

 Now, the head, future prospects is widely accepted as an aspect to be taken into consideration while assessing the compensation. This expression is widely used and a search in any of the legal software will throw up several thousands of judgements of the apex court or of various high courts, wherein this expression is used.

It was in this background, in a memorandum of an appeal I included this ground. Thereafter I sent the draft of it to the server of Grammarly. Grammarly is owned by the Microsoft Corporation. It has two versions. Free and paid, and the paid version is prohibitively priced. For obvious reasons, the version I use is the free one. This software will point out various grammatical and or spelling errors, extra space or lack of space between the words, redundant expressions, etc., and also makes better suggestions. When it reached the expression ‘future prospects’ the software pointed out that there is redundancy in this expression. It was a big surprise. Redundancy in an expression freely used by the highly educated class of India! First I thought that the software is under a mistake. There are such instances also. When the word ‘state’ is typed in the attestation portion, this software would suggest writing the article ‘the’ before the word state. So I thought that the redundancy, in this case, belonged to that category.

Anyway, I decided to go deeper into it. The result was quick and more surprising. The word prospects itself means the possibility or likely hood of some future event occurring. So the word future is not needed or useful before the word prospects.

Tailpiece

To put it light-heartedly, I feel that, though Grammarly is correct, there is no “future prospect” of use of this expression being avoided by the courts or lawyers. It is likely to remain in the vocabulary of the courts, along with the names of different kinds of consorts. Until recently there was only one type of consort though the number may be more in certain cases. Anyway, a welcoming feature is that these heads enhance the amount of compensation that is awarded.

Bar Service for Pension and 2021(6) KLT 746 (SC)

(By P. R.Vijayakumar, Advocate, Thrissur)

Hon’ble Supreme Court as per the decision Sadasivan Nair v. Cochin University of Science and Technology (2021(6) KLT 746 (SC) set aside the judgment of the Division Bench of Kerala High Court as well as that of the learned Single Judge of the High Court dated 29th August 2019 (2019 (3) KLT OnLine 3095 - Sadasivan Nair v. Cochin University of Science and Technology) and 3rd April, 2006 respectively and allowed the appeal.

By the judgment the Apex Court found no valid ground to sustain the application of the proviso in relation to the appellant, Dr.Sadasivan Nair, a retired faculty of law of Cusat thereby denying the benefit of Rule 25(a) of Part III,Kerala Service Rules, when the same was not applied in the case of Dr.P.Leela Krishnan (also a facaulty of law of Cusat retired earlier), thereby allowing the benefit of Rule 25(a) by the university to him. Rule 25(a) by an amendment is as follows:

“25(a).Persons recruited from the Bar after the age of 25 years to appointments in Government service may add to their service qualifying for superannuation pension (but not for any other kind of pension) the actual period (not exceeding ten years) by which their age at the time of recruitment exceeded 25 years provided that no employee can claim the benefit of this rule unless his actual qualifying service at the time he becomes eligible for superannuation pension is not less than eight years. This concession is also subject to the condition that the period that may be so added shall not at any time exceed the actual period of the employees practice at the Bar. No application will be entertained for pension on the ground that the appointee did not get an opportunity for service for the qualifying period:

Provided that the benefit under this sub-rule shall be available only to employees who are recruited when practicing at the Bar to posts requiring law qualification and experience at the Bar”.

In the Civil Appeal before the Apex Court the CUSAT (the respondent) putforth the argument that Dr.Sadasivan Nair (the appellant) cannot claim his bar service as qualifying service for pension relying on an earlier illegal order of the CUSAT. Such a claim based on negative equality in favour of the appellant is untenable, it is further contented. The earlier illegal order of the respondent university is nothing but consideration of Bar service of an earlier faculty of law (Dr.Leela Krishnan) and when retired allowed pension to Dr.Leela Krishnan treating his earlier Bar service as qualifying service for pension. But the KSR (Part III) Rule 25(a) stands, as quoted above since 12.02.1985. Dr.Leela Krishnan retired on 30.04.1996.

By earlier judgments the Apex Court reiterated that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. ln this juncture it has to be specified thus that the law laid down by the Apex Court in Chandigarh Administration and Anr. v. Jagjit Singh & Anr. (1995 (1) KLT OnLine 904 (SC) = AIR 1995 SC 705) is to the effect that a mistake is always a mistake, which cannot be perpetuated by giving a positive direction, and an illegal order cannot be repeated again and again by exercising the discretionary power of the Court.  (emphasis supplied)

Thus the University specifically repeated and admitted that the reckoning of bar service of Dr.Leela Krishnan as qualifying service for pension is an illegal order and therefore that illegal order and such other orders of the university cannot be relied or based to reckon the appellant’s bar service as qualifying service for pension under K.S.R. In this juncture it is pertinent to note that the Hon’ble High Court of Kerala has a reasoned occasion to consider this issue in O.P. (KAT) No.294 of 2017 (Vijayakumar v. State of Kerala, relied the decision of Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995 (1) KLT OnLine 904 (SC) = AIR 1995 SC 705) and dismissed the OP by not admitting the claim of the petitioner to reckon his bar service as qualifying service for pension. The petitioner was a Deputy Commissioner retired from Commercial Taxes Department, Govt. of Kerala.

The Hon’ble Apex Court in Sadasivan Nair’s case judges: “While we accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25(a). The law, as recognized by this Court in Deoki Nandan Prasad and Syed Yousuddin Ahmed (supra) unequivocally states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated”.

Thus the view of the Apex Court byDr.Sadasivan Nair’s judgment that if the respondent University sought to deny the benefit of Rule 25(a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly. The proviso is in force from 12 February, 1985. However, the action of the respondent University of selectively applying the proviso to Rule 25(a) in relation to the appellant, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal, the Apex Court now held. Such discrimination, which is not based on any reasonable classification, is violative of all canons of equality which are enshrined in the Constitution of lndia, the Hon’ble Apex Court as perDr.Sadasivan Nair’s judgment held.Hence, in the instant case (of Dr.Sadasivan Nair), the denial of the benefit under Rule 25(a), KSR, to the appellant is arbitrary and not in accordance with law. The Hon’ble Court further held that consequently, the appellant is entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at CUSAT and the period of his practice as an Advocate in various Courts of Kerala.

Thus there emerges a conflict as whether an order of Government Authority or University in Kerala governed by KSR be liable to follow thereon the earlier order reckoning bar service as qualifying service for pension since 12.02.1985 while this authority itself recognizes as their earlier order reckoning bar service as qualifying service for pension is an illegal order(ie., against the provision under K.S.R.).AIso, whether an admitted illegal order of Government, authority or University in Kerala governed by K.S.R. is liable to be repeated based on the pronouncement that the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated.

The Apex Court is seen relied their earlier judgments of Deoki Nandan Prasad v. State of Bihar (1971 KLT OnLine 1025 (SC) = AIR 1971 SC 1409) and Government of  Andhra Pradesh & Ors.v. Syed Yousuddin Ahmed (1997 (2) KLT OnLine 1122 (SC) = (1997) 7 SCC 241) by which it is held that the emoluments forming a part of the pension payable to an employee shall be determined on the basis of the rule existing on the date of retirement. Dr.Leela Krishnan retired on 30.04.1996 and Dr.Sadasivan Nair retired on 30.04.2007.The proviso under Rule 25(a) is with effect from 12.02.1985.Thus both of them retired after 12.02.1985.

May be the University (CUSAT), the Apex Court found in the instant case of Dr.Sadasivan Nair, no argument has been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr.P.Leela Krishnan and on what basis the benefit of Rule 25(a) was granted to Dr.P.Leela Krishnan but was withheld in relation to the appellant. From the judgment of Dr. Sadasivan Nair’s case it is clear that the main reasoning of the Apex Court led to decide in favour of the appellant is nothing but “the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated”. That is the university as specified by the Apex Court in this judgment that “However, the action of the respondent University of selectively applying the provision to Rule 25(a) in relation to the appellant, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal”.

Thus the questions remain as whether 1995 (1) KLT OnLine 904 (SC) = AIR 1995 SC 705 (i.e., Chandigarh Administration’s case), or 2021 (6) KLT 746 (SC) i.e.,Sadasivan Nair’s case, is a reliable one while considering the Bar service as qualifying service for pension under Rule 25(a),Part III of K.S.R. in future is a moot question. Both the judgments are of the Benches with 2 Hon’ble Judges. And whether correction of mistaken application of service rules in future by a department or university (as done by CUSAT, the respondent) while allowing pension in Kerala be amounts to discrimination and violative of all cannons of equality enshrined in Constitution of India?

A kind clarification is needed.

Much Obliged

(By Jacob Abraham, Advocate, High Court of Kerala)

“Much obliged” is an expression that reverberates in the court halls these days. Just like the national anthem is sung at the end of the official functions, this expression is uttered immediately after a judgement is pronounced. With one obvious difference. Except in the case of adjournment of a case, it is said mostly by one side. At the rate it is said now, in future it is likely to be said even during the arguments and more number times than the expressions ‘ as your lordship is aware of, ‘as your lordship rightly pointed out, etc. The other day a Delhi lawyer was heard saying “deeply obliged”. No wonder persons from seat of power like capitals are experts in finding new versions of such expressions. Lawyers from Trivandrum, please excuse. No offence meant.

From the lockdown induced reverie, I suddenly came out with a sudden memory of witnessing a heated discussion. It took place in the early nineteen eighties and the venue was the Wilkinson Law Library. Kozhikode Bar Association hall is known by this name. Inside this hall, there is a hallowed place by the name ‘Center Room’.  It was then the abode of titans like T.K.Lakshmana Iyer, C.Achutha Menon, S. Krishna Iyer, T.P. Aravindaksha Menon, Raja Raja Varma, Varkey Paikada, James Chacko, T.V.Sidharthan, etc. Even lawyers with twenty, twenty-five years of standing feared to tread the room. Juniors like me could enter it, only to take the case files kept on the window sills of the room. When the discussion turned attractive we remained there as if going through the case files.

In this room, every subject under the sun was discussed threadbare. Nothing was an anathema. The particular subject on that day was a rare one. An outstation lawyer, when he got an ad-interim order uttered this expression ‘much obliged’. The discussion centred around whether it was proper to say this expression when you are getting an order from a court. All  orders of the courts  are presumed to be issued on merit. After some time, everyone came to the view that it was improper to say ‘much obliged’. The reason was that, it was an acknowledgement of the receipt of kindness or courtesy and is obligated to return the favour and the court orders do not share any of these characteristics. To which, Sri. James Chacko humorously added that it might be an undeserving order. As times go by, the habits and practices change. Even meanings of words and expressions change. During the time of Shakespeare if someone says she is his ‘friend’, it carried a negative connotation.