As per the Powers of Attorney Act, 1882, Power of Attorney (PoA) is a legal instrument that empowers the individual holding the PoA (agent) to act on behalf of the individual who executes the PoA (the principal). There are two main types of PoA: General Power of Attorney (GPA) and Special Power of Attorney (SPA). A GPA is used to grant the agent broad authority to perform a wide range of actions on behalf of the principal, while an SPA grants restricted authority to the agent to perform specific tasks explicitly stated in the document.

In the context of patent law, Rule 135 of the Patents Rules, 2003, mandates that the authorization of a patent agent must be filed in Form 26, which is a standardized format for granting such authorization, or, alternatively, in the form of a PoA.

According to the Patent Office’s internal circular (Departmental Circular No. 12 of 2009), if a GPA in original is submitted with a patent application, it is not required to submit an original GPA with every subsequent application. The patent agent can file a self-attested copy of the GPA for each subsequent application, along with a forwarding letter or attestation mentioning where the original GPA is on record.

However, a recent trend shows an increase in refusals of patent applications based on the formal ground of invalidity of the GPA.

The Calcutta High Court, in its judgement dated April 22, 2025, in the case of Huawei Technologies Co. Ltd. vs The Controller General of Patents and Anr. [IPDPTA/6/2025], underscored that such a formal and pedantic approach must not be adopted by the Controller of Patents in deciding applications.

In the instant case, the Appellant’s patent application was refused by the Assistant Controller solely on the ground that the General Power of Attorney submitted by the Appellant’s patent agent was invalid. Notably, the said GPA was a copy of an original GPA filed with another application.

The Assistant Controller, in the impugned order, did not deal with any technical objection raised in the First Examination Report (FER) or in the hearing notice, and was entirely focused on the procedural aspects. The Assistant Controller recorded that the GPA was not “in accordance with law”, and, therefore, no further examination of the application was required. Specifically, non-compliance with Sections 127 and 132 of the Patents Act and Rules 126 and 135 of the Patents Rules was cited.

The Appellant challenged the refusal of the application on the following grounds:

• Violation of Natural Justice: The impugned order disregarded the Appellant’s written submissions, which addressed both technical and formal objections raised by the Controller.
• Delayed Objection: The objection regarding the validity of the GPA was not raised in the FER and was raised for the first time only in the hearing notice.
• Misplaced Reliance on Legal Provisions: The Assistant Controller’s reliance on Sections 127 and 132 of the Patents Act, and Rules 126 and 135 of the Patents Rules, was misplaced in view of the Departmental Circular No. 12 of 2009, which permits the use of copies of GPA.
• Bias: By pointing to a prior complaint filed by the Assistant Controller against the Controller regarding the acceptance of invalid GPAs in proceedings before the Patent Office, the Appellant contended that the Assistant Controller was biased.

In its judgement, the Court reprimanded the Controller for adopting a strictly formal approach in deciding the subject application. The Court commented that, “the impugned order is a wasteful exercise of time, expense and money and serves no purpose whatsoever. Such a pedantic, formal and hyper-technical approach is counter-productive to the entire object behind grant of patents. Procedure is a handmaid of justice and not its mistress which highlights that procedural laws should not dominate the substantive rights of parties”.

The Court found that the principles of natural justice had been violated, as the Appellant was not given an opportunity to rectify the alleged formal defect. Furthermore, it was noted that the Assistant Controller failed to consider the substance of the invention and the impugned order was passed without adjudicating on the merits of the case.

Additionally, the Court took note of the complaint letter filed by the Assistant Controller addressed to the Central Government concerning the acceptance of invalid GPAs, which had not been responded to or acted upon by the Central Government. The Court observed that the Assistant Controller had merely reproduced the contents of the complaint letter in the impugned order.

On the issue of validity of the GPA, the Court highlighted that the standard practice at the Patent Office permits the filing of a self-attested copy of the GPA, with a reference to the original, as per Departmental Circular No. 12 of 2009. The Court opined that such practice encourages consistency in the processing of applications.

Importantly, the Court emphasized that none of the provisions of the Patents Act and Rules provide for the refusal of an application solely on the ground of invalidity of the GPA. The Court elucidated that Sections 127 and 132 of the Patents Act and Rules 126 and 135 of the Patents Rules only provide for suspension of action on substantive issues until compliance is made. The Court also clarified that Rule 135 stipulates that authorization of a patent agent can be submitted either through Form 26 or by way of a PoA, thereby recognizing both as valid modes of authorization.

Accordingly, the impugned order was set aside, and the matter was remanded to a different Hearing Officer for fresh adjudication.