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Debate: Legality of Viva Voce

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Should viva voce be retained as an eligibility criterion for patent attornies in India?

Background and Context of Debate

In order to qualify as a patent attorney in India (entitled to file and prosecute patents), S.126 of the Indian Patents Act read with Rule 110 of the Patent Rules mandate the following:

i) The candidate must be a citizen of India

ii) Must have completed the age of 21 years

iii) Must have a science, engineering or technology degree from India

iv) Must have passed a qualifying exam:

The exam tests a candidate on his/her knowledge of the patents act (Paper I) and his/her proficiency with drafting and interpreting patent specifications and other related documents (Paper II). The total marks for the exam are 300. Each of the written papers (Papers I and II) is for 100 marks. Subsequent to the written exams, a viva voce of 100 marks is also conducted.

In order to qualify, a candidate must get 50% in each individual component of the exam (Paper I, II and the viva) and shall be declared to have passed the exam only if he/she obtains an aggregate of 60% of the total marks.

Resolution

The proposers of the motion Prof. Shamnad Basheer, Shan Kohli and Sai Vinod (Students of NUJS, Kolkata) contend that

(a) The requirement of a viva voce is unconstitutional, inherently subjective and entails significant administrative and other costs. Hence it should be done away with.

(b) Alternatively, assuming that the viva is held legally valid in principle, the present structure of the viva is arbitrary and unconstitutional. And should therefore be changed.


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Whether such vivas are unconstitutional?

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Yes

(i) Viva voce is prima facie unconstitutional

Assuming a viva is meant to test the subject matter expertise of the candidate in question; it is rather pointless and redundant in the context of the patent agent exam. For subject matter expertise is more than adequately tested through two written papers. We have reason to believe that the viva voce conducted for the last patent agent exam held on 24th January, 2010 asked questions (centered around various provisions of the Indian Patents Act) meant to test subject matter competence. This is clearly an unnecessary and redundant exercise, since this has already been tested through a written paper.

It is pertinent to note that some studies have shown that one of the disadvantages of an oral exam is that a relaxed but technically weak student may perform better when compared to a technically superior student, who has difficulty expressing herself.

Although traditionally a viva voce refers to an “oral” examination (primarily conducted as a thesis defense of sorts for candidates’), the term has come to assume the role of a personality test within the Indian context. Indeed countless court decisions now refer to a viva voce as a gauge for the personality of a candidate.

A personality test holds relevance for events such as job interviews and the like i.e. where the prospective employer has to assess the personality of the candidate in question: whether they are self confident, likely to fit in within the overall environment of the office etc.

However, it is clearly irrelevant in the context of a patent agent exam. In India, a viva voce is used in exams such as the IAS exam to determine the personality of a potential Indian administrator. In Dr. LR Nath v Delhi University it has been held that though the assessment of personality traits is critical for recruitment to Civil Services or other positions where initiative, self confidence, resource fullness and leadership qualities are an absolute pre-requisite, it is not essential for those cases where these skills are not a necessity. Further in Union of India v N Chandrasekaran it has been held that while considering the marks to be allotted for an interview due regard must be had to the post to which the candidates are to be appointed as well as the nature of the duties they have to perform.

A patent agent exam is very different from the IAS exam. For one, unlike the IAS which is a competitive exam meant to select only the very best from those who have appeared for the exam, the patent agent exam is only a qualifying exam meant to assess some basic level of competence as would enable such attorneys to meaningfully help clients file and prosecute patents. In other words, the only test is whether or not the person possesses minimal subject matter competence. This is already tested through two written papers. The personality of the individual and in particular, the leadership qualities etc are really not necessary for the purpose of determining the suitability to function as a sufficiently competent patent agent.

It is pertinent to note that India will be having its first bar exam in December this year. A bar exam is meant to test all law graduates on their basic knowledge of the law, as would ensure some minimal competence of a degree sufficient enough to enable them to practice at the Bar. This exam has only a written component and no viva voce or interview. It is also pertinent to note that most patent qualifying exams and bar exams in the US and other jurisdictions require that candidates merely clear a written exam. Therefore, the requirement of a viva voce as part of a patent agent qualifying exam is violative of Article 14 of the Constitution. Article 14 lays down that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. While in some cases a differential classification may be allowed, there should be some rational nexus between the basis of classification and the object intended to be achieved. Applying this test to the present case, there is no rational nexus between a viva voce exam and the objective of selecting people vested with some minimal competence to practice patent law.

(ii) Assuming that the viva is held to be valid in principle, the present structure is arbitrary and unconstitutional

Our main contention is that the very requirement of a viva voce exam to qualify someone as a patent agent is violative of Article 14 of the Constitution. However, even assuming that the viva is upheld in principle for some reason, our contention is that the present scheme of marks (where a viva accounts for 100 marks and amounts to 33% of the total exam marks) is unconstitutional. And that in order to be legally valid, the viva marks ought not to exceed 12% of the total number of marks.

The Supreme Court has held that not too much reliance can be placed on a viva voce test. In Ashok Kumar Yadav v State of Rajasthan the court noted that the allotment of as much as 33.3% marks for viva voce would make the selection arbitrary and the courts could interfere. If the spread of marks in the viva voce is enormously large compared to the marks in the written test, the viva tends to become a determining factor in the selection process because even if a candidate secured the highest marks in the written examination, she could be easily knocked out of the race by awarding her the lowest marks in the viva voce test and similarly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. The court held that the percentage of marks allocated for the viva voce test by the Union Public Service Commission ought to be adopted i.e. 12.2%

Therefore it is seen that even in those cases where personality is a relevant factor to be tested, the court has recommended that the allocation of marks for viva voce ought not to exceed 12.2%.

Therefore, even assuming that the viva is upheld in principle for some reason, our contention is that the present scheme of marks (where a viva accounts for 100 marks and amounts to 33% of the total exam marks) is unconstitutional. And the viva marks ought not to exceed 12% of the total number of marks.


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No

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a lawyer has to help clients by advising etc. so oral skills through viva must be tested.




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Whether the viva voce test imposes significant burden on the administration?

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Yes

A viva voce means that the government would need to procure a good number of examiners and ask them to conduct vivas in all major cities of India. The number of candidates for the last patent agent exam was 1019. In Delhi alone, 381 candidates took the exam. A city such as Delhi would require at least 2-3 interview panels consisting of 2-3 interviewers each i.e. around 5-6 interviewers in all. This entails significant costs.

Further interviews have to be conducted over several days if they are to be meaningful. Courts have held that in order to be meaningful, interviews must last at least for 10 minutes.

The court in Ashok Kumar Yadav v State of Rajasthan stated that, it is difficult to see how a viva voce test can be carried out, if over 1300 candidates are to be interviewed for recruitment to a service. If a viva voce test is to be carried out in a thorough and scientific manner, the interview must take anything between 10 to 30 minutes.

Apart from the costs to the government, there are significant costs imposed on the candidates as well. They have to travel from remote towns and spend money to stay in the cities where the interviews are conducted.

This cost is clearly disproportionate to the benefits from a viva, given that, in its present avatar, it merely tests for subject matter competence.

The written form is much easier and cheaper to administer and can be given to a large number of individuals at the same time, thus saving costs and conserving the time of the examiners.

Further the viva voce test suffers from certain disadvantages such as the difficulty of developing a reliable oral test, the difficulty of securing a reviewable record of the test and constant public suspicion of the oral test being used as a channel for the exertion of political influence. This brings us to our next point on the inherent subjectivity of a viva voce exam.


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No

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but if the process of viva is legitimate, the costs should surely not be a concern




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Whether there is inherent subjectivity in the procedure?

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Yes

The viva voce examination method is prone to being highly subjective. There may be a lack of agreement between examiners on the marks to be given to a particular candidate and there tends to be variation in questions posed to different candidates since questions put forth may be prompted by the candidate’s responses.

A statistical analysis carried out on the patent agent exam last year offers evidence of subjectivity.

A measure of standard deviation was performed on the exam results in order to see how much variation there was from the average scores. A low standard deviation indicates that the data points tend to be very close to the mean, whereas high standard deviation indicates that the data are spread out over a large range of values. As such, low standard deviation would indicate uniformity and a large standard deviation would indicate a disparity.

The average score for Paper 1 and Paper 2 in all four centers was similar at around 51 and 45 respectively. This is also evidenced from the standard deviation. The standard deviation for scores in Paper-1 and Paper-2 in Delhi, Chennai and Mumbai was very similar at 14.5. The standard deviation for viva ought to have been similar for Paper-1 and Paper-2. However the standard deviation for viva widely differed for Delhi, Chennai and Mumbai. Statistically, this is an anomaly and tends to reflect the subjectivity of the viva portion of the exam.

In the standard deviation for individual cases, it is seen that even though a candidate’s personal score in the viva is the highest, she has failed overall (low marks in Paper-1 and Paper-2).


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No

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