Who Am I? of Patent Independence and 'Adjudicative Regulators'
Kritika: Essays on Intellectual Property, Hanns Ullrich, Peter Drahos and Gustavo Ghidini (editors), Edward Elgar, Volume 3, 2018
19 Pages Posted: 22 May 2019
Date Written: April 10, 2018
In this paper, we reflect on the question: who or what exactly is the patent office? And how best do we secure its judicial proficiency and independence? We offer a framework for assessing the above question, after cutting through the vast morass of often confusing case law in this regard that has failed to draw a conceptually sound distinction between the judicial, the quasi-judicial and the administrative.
We argue that agencies such as the patent office tasked with a high level of adjudicatory functions are predominantly “judicial” in character and ought to therefore be categorized as “Adjudicative Regulators.” As such they are to be vested with a significant degree of judicial competence and independence. We offer some broad suggestions in this regard.
Our frame is likely to be useful for characterizing other regulatory agencies with predominant judicial functions, and could well prove instructive for agencies in other countries with legal regimes similar to that of India.
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