This position paper seeks to establish that the bill proposing certain amendments to the IPCcontains unabashed violations of some of our constitutionally protected rights and that some of its proposed amendments are unreasonable considering the reality of life in the modern age.
I. Expansion of IPO’s Powers
Under Section 7 of the proposed Bill, the IPO shall enjoy the power to enforce the law and thevisitorial powers without the benefit of a judicial warrant. This provision is objectionable on thefollowing Constitutional grounds:1. It violates the Due Process Clause2. It violates the Right against Unreasonable Searches and Seizures3. It violates the Equal Protection Clause
A. Enforcement Functions Violates Due Process
The enforcement functions granted by this provision to the IPO violate procedural due process.
, the IPO is the agency which processes and grants the applications for registration of intellectual property (IP) owners.
, IP owners make regular payments to the IPO in theform of registration fees. IP owners, in contrast to alleged IP rights infringers, have moreexposure to the IPO, and the IPO is, in a way, beholden to IP owners for funds. Given this closerelationship, this provision will violate the right to procedural due process of alleged IP rightsinfringers because their chances of getting an unbiased and fair hearing before the IPO is low, if not, nil. Without the guarantee of a fair hearing,
is necessarily violated.
B. Visitorial Rights Violate Substantive Due Process
Section 7(d), which grants visitorial powers to the IPO violates substantive due process.
,the grant of visitorial powers in favor of the IPO is not required by the interest of the publicgenerally for it only favors IP owners, who, on the basis of a mere report, information, or complaint and without necessity of hearing, can invoke such power to their advantage; and
, such grant of power, while logically connected to the accomplishment of a desired purpose, is unduly oppressive upon individuals and establishments for the IPO use such power even without hearing or evidence.
Visitorial Right Permits Unconstitutional Warrantless Searches
Section 7(d), which allows the IPO to conduct visits on the basis of a mere report, violates theconstitutional right against unreasonable searches and seizures. The provision allows the IPO toexercise such power without judicial determination of probable cause. Indeed, the IPO, at aminimum, can conduct visits on the basis of a mere report – without regard to its accuracy, truthor indeed, admissibility in evidence.
D. The Additional Powers Violate Equal Protection Clause
The expanded powers of the IPO must be seen within the larger context of litigation advantagesgranted by Congress under the Amendatory Bill. Unlike other litigants, IP rights owners enjoythe benefit of having evidence impounded under Section 216.2 and prove their case throughaffidavit evidence with a presumption of ownership under Section 218. In addition, the proposedamendments permit IP rights holders to enter private spaces without a warrant to enforce their