Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 3

Edited by Hanns Ullrich, Peter Drahos and Gustavo Ghidini

The fields of intellectual property have broadened and deepened in so many ways that commentators struggle to keep up with the ceaseless rush of developments and hot topics. Kritika: Essays on Intellectual Property is a series that is designed to help authors escape this rush. It creates a forum for authors who wish to more deeply question, investigate and reflect upon the evolving themes and principles of the discipline.
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Chapter 4: Who am I? Of patent independence and ‘adjudicative regulators’

Shamnad Basheer and Rahul Bajaj

Abstract

In this chapter 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 this 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 be therefore 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 characterising 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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