Ms Rajeshwari Hariharan, founder of Rajeshwari & Associates, specialises in intellectual property law, especially, IP litigation. With over 20 years’ experience in legal practice, Ms Rajeshwari’s areas of practice include counselling on issues relating to patent and infringement including rendering patentability opinions, drafting technology transfer and knowhow agreements, licences, assignments; prosecution of patent applications in the field of pharmaceuticals, biotechnology and biochemistry.
Her achievements include winning the first-ever compulsory licence for Natco and litigating the issue right through until the Supreme Court. Other achievements include strategising and winning the Glivec battle right from the patent office to Supreme Court wherein the Court gave the much-needed interpretation of Section 3(d). She was lauded for her efforts to win the first ever compulsory licence granted in India and won the first ever case on the interpretation of Bolar Provision in India (Section 107-A).
Looking at her achievements, Ms Hariharan has been awarded the title of trade mark Star by Managing IP for 2019, and leading Patent Lawyer by Chambers & Partners and Intellectual Asset Management, respectively.
1. To begin with, please tell us something about yourself, your journey in the profession and your early years with our readers.
I always wanted to do something that would impact the society at large. After school my interest developed in medicine. But I came across lawyers during our college days, fighting and winning cases that made an impact and benefited farmers (there was a court order that compelled the municipality to remove garbage and keep the roads near our college clean and there was another order whereby some farmers got their land back). So, I thought to myself that this is the field that would enable me achieve the goal of impacting the society. And that is how I jumped into the field of law after graduation. You can say I am a lawyer by choice and one with passion for my profession.
The journey thereafter has been quite rocky, I must say. In my initial years, I had the good fortune to work with great lawyers like Mr Khaladkar, Senior Advocate V.R. Manohar, etc. and that too on a variety of areas from urban land ceiling, trusts, company law, arbitration, real estate transactional matters, rent matters, etc. I also had the good fortune of a limited stint with criminal law. All of these gave me an understanding of the broad canvas of law.
My seniors, especially the senior advocates spent a lot of time training and teaching me many of the basic principles which laid a very strong foundation and gave immense clarity in understanding complicated legal principles.
After my initial years at Pune, I migrated to Delhi and joined K&S Partners where I learnt the basic principles of IP law and thereafter, I set up my firm in 2009. Eventually, now I have moved to independent counsel practice. I quite enjoy where I am as this is really where I wanted to be.
2. How did your law school experience shape you to what you are today? Please also share your interests and motivations.
In law school, one learns not only the basic law subjects. I used to also do an internship with a senior lawyer during the period I was in law school. I thus learnt what thinking like a lawyer means; how to process large volumes of information and spot the right chain of facts so that you can build your case. Our system is all about dispute resolution. Our judicial system is all about finding solutions to problems. Therefore, the learning that one must acquire is to become a crafter of solutions. Besides, clients will tell you many things — it is your craft to ferret out and sift out the relevant facts from the vast ocean of information and erect the case of your client. The law school teaches you the law — but to stitch the facts together and develop a case for your client is entirely your responsibility. You learn all these and more with practical experience. Law school teaches you some subjects of law — but the real law is learnt through experience. That is why this profession is called a “practice” — you are a student all your life.
3. Can you please share your experience having been a practising advocate in a reputed and leading Delhi-based law firm, to setting up your own firm? How has the transition been from one to the other?
Firstly, I had never thought of setting up my own firm. I started off initially with District Court practice, where I worked on a variety of matters including real estate, arbitration, contracts, etc. I used to work for late hours, rummaging through files, researching and preparing for the cases. I did get few opportunities to argue cases for our clients and we got relief as well. That reinforced my conviction that this profession is truly noble, as I was taught. I always found litigation very fascinating – the sheer ability to represent a client in court, stand up for their cause and make an impact.
One such case is about a probate matter that I was handling many years ago. It was about a man who died intestate, leaving behind 3 children who were fighting for his property. Two brothers pitted against a divorcee sister, the brothers claiming interests through a Will and the sister claiming an interest as according to her, there was no Will.
The matter came to us during trial when we had to cross-examine one of the brothers. Being a green horn with plenty of time on hand, I poured over the matter time and again and found that the brothers’ narration of facts had big holes and did not just add up. To get to the bottom, I visited the place where the father was supposed to have lived his last days. I made enquiries with the neighbours and noted many peculiarities which I put to the brothers in cross — they could not answer many questions.
When I confronted them with photographs, they had to give up. The sum total that emerged from the cross was that the brothers were always in the United States and did not even come for the last rites — it was the sister who took care of the father. No one ever saw any Will being executed and the brothers who apparently “lived with the father” did not know anything about the basic construct of the house. After the cross, the brothers settled with the sister, my client. That is all that we wanted anyway.
After my stint with a reputed law firm in Delhi, I decided to set up my own firm. The vision was to create a firm where practical advice is given to people promptly. We began from ground zero. It was a journey and has been an adventure all through. We started with a small office at Gurgaon and have now grown over the years. We have kept some basic principles — high quality, quick, practical. We stay on top of things and use technology wherever possible. The journey has not been all sunshine and roses. But it has been an enjoyable journey and we are loving it.
We have faced challenges galore — but have kept going. We have had some very challenging assignments — such as the first compulsory licence in India. We strategised it right from the beginning till the end and argued the matter in-house to win at all fora right from patent office to Supreme Court. The verdict is not only just the first ever compulsory licence, but the first ever that was adjudicated by a court of law. It is the first granted in India and is the first of its kind for liver cancer. The grant of compulsory licence has been historic as it has helped to save the lives of millions of people affected by liver and kidney cancer. There have been many other achievements in this line and these are the ones that keep us going.
We have since then been chosen as one of the finest law firms in Asia, also rated high by MIP, etc.
Now the firm is managed by Mr Deepak Sriniwas, since I have stepped down and started counsel practice.
4. How have the intellectual property laws developed in India? Do you believe the laws in India are effective in protecting intellectual property?
IPR laws in India have always existed in India since the British era. However, slowly and steadily, we have seen a change in view of the country’s obligations under TRIPS. The changes started to occur from 1999 and have continued slowly since then. First, there were changes in the patent law and exclusive marketing rights were introduced; product patents came thereafter with a 20-year term of patent. Design law has also undergone a change to include worldwide novelty. Same is the case with trade mark law wherein concept of well-known mark, etc. have been brought in. Law for protection of geographical indications and plant varieties was also brought in. I have contributed to the making of some of these legislations. But I believe there is scope for further changes. Like there is an urgent need for a law for protection of trade secrets.
India had been the hub of innovations many centuries ago. We need to regain that position and it is not impossible, because we have all the talent. Innovation is fundamental to charting a country’s economic growth and development. Complemented by effective intellectual property laws, it can enable innovators and researchers in countries like ours to climb up the global ladder very easily.
Courts have been quite proactive in protection and enforcement of IP rights. Injunctions are granted when it is found by the court that IP rights, whether trade mark or patent, are violated. This is also an important aspect because strong enforcement regime gives confidence to innovators to invest in innovation and foster such an atmosphere in the country.
5. With fast-paced technology taking over the world, can we expect a shift in the dynamic of protecting one’s IP?
Sure, I think very soon India will become one of the world’s important economies, may be 3rd or 4th. At that time, it would be impossible for our country and its innovators to survive without IP protection. In fact, about 15 years ago, people had no idea of IP rights. Today, even at the grassroot level, you can find some knowledge of IP rights. They may not know the specifics of each of the IP rights, but they do know they must protect.
Therefore, it is quite expected that there would be a shift in the way IP rights are perceived. Also, you must take into account the changes that technology brings in. With rapid advances in technology, one cannot but change, and in a positive manner, to catalyse economic growth in the country.
6. You have had a commendable journey in IPR over the years. Among all the matters handled by you, which was the most exciting and challenging, according to you?
I have handled many interesting cases and some of them just stay. Sometimes, we are caught between the interests of a client and our duty to the court, because a lawyer is an officer of the court first, then, anything else. There was one case where my client was selling products that infringed a trade mark. The mark of my client was not identical, but deceptively similar (the marks were LACOSTE and LACOUSETEE). The Court had granted ex parte injunction and also appointed a Local Commissioner to seize the infringing goods. When the Local Commissioner visited the premises of my client, he was perplexed. Instead of seeking legal advice, he took law into his own hands and failed to cooperate with the execution of commission which was recorded by the Local Commissioner that he was abused and manhandled. Of course, what followed was a contempt and I was asked to represent this client-in-contempt.
Difficult, I thought. But more than difficult, was my bewilderment — the conduct of my client was nothing but abominable. By no means I could support it. But I also had to save my client. I decided to reach the premises where the raid took place and examine it with the Commissioner’s report and the photographs taken by the Commissioner. What I found was startling — that prior to the alleged manhandling, the party of the plaintiff had threatened and abused my client which of course was followed by manhandling.
Of course, my client would not admit anything to me and pleaded that the report is false and fabricated.
On the D-day, the court after hearing the plaintiff, put to me — “counsel, you may argue whatever. This is an open and shut case. Please ask your client to be present. I am sending him to jail”. It sent shivers down my spine. Matter was kept for next week.
But here is where I put to practice another important quality of a lawyer — being unruffled, objective, doing what is to be done — but to your best; peppered with some lawyerly courage. I was told by many friends that I should quit this case and let the client go elsewhere — that it would be a blot on my career to represent such fraudsters. I could do none of that as the client had come through some reference and letting them down was absolutely not on my agenda.
I quickly put together an affidavit explaining the series of facts that lead to the unsavoury episode with a note of apology. Before the next date, my client urged me to argue that there were other unscrupulous elements who entered the premises and in the confusion that followed, manhandling occurred. I obviously, could not have argued all this. It was not in his interest. But also had a duty to perform. I did not know which was to prevail.
On the appointed date of hearing, I started off with a humble note, accompanied with an honest tone, and also expressed deep sense of apology. I did narrate to the court what actually happened bit by bit with photographic evidence; but ended with an apology, and need for reform rather than punishment.
I do not know if it was my apology or my client’s demeanour or his pure good luck that turned the tables. The court who was determined to send my client to jail — ordered an enquiry into the episode. She directed my client to deposit 5 lakhs as bank guarantee. She also accepted the apology and directed my client to pay Rs 2 lakhs for treatment of cancer to a hospital. The client complied, with a grudge. But my inner soul sang a song. I had done nothing less than what was right, being honest to the court and also saved my client from a jail term. The client never came back though. I have no regrets.
7. How important is doing proper legal research? And how should law students equip themselves with legal research skills?
I think legal research is fundamental when it comes to legal practice. As I said earlier, there is no perfect case. You have to build a case from the facts and therefore, the art of picking the relevant facts — choosing which facts are in your favour and finding solutions to the problematic issues. Therefore, legal research is very helpful to make or break your case.
There is one example to illustrate this. I was engaged by a local advocate in Ahmedabad where we were arguing a trade mark matter. I was for the defendant and the plaintiff was represented by some Senior Counsel. I think there was communication gap and the latest judgment was not given to the senior and hence was relying on some older judgments. I had however, known of the latest judgment and the fact that the latest judgment had changed the position of law on that aspect. I brought that to the attention of the court and argued that injunctive relief could not be granted. Eventually, we did win this case but that is the importance of good legal research. It can make or break your case.
8. A huge congratulations on your accolades including the title of trade mark Star by Managing IP for 2019, and leading Patent Lawyer by Chambers & Partners and Intellectual Asset Management. What is the one thing you would like to say to our female readers who wish to create an identity for themselves in law?
I have had the opportunity to cross paths with dozens of woman lawyers at various stages of their careers. I think there are many women who are very talented, young and have diverse and amazing professional experiences.
As females, we will have to struggle, overcome obstacles, and excel in our careers. We have to work harder — firstly, to prove ourselves, and secondly, because we do have a home to take care of.
Two main tips for women — (a) believe in yourself; and (b) be honest and work hard. I do not guarantee success, but you are likely to reach there for sure.
9. Is there anything that you would like to share with the readers and researchers of SCC OnLine?
I think the legal profession is a very demanding profession. No amount of work, effort or study is ever enough. But there are some pointers that one can follow in order to sustain life as a lawyer—
(a) Be clear on your goals — Whether you wish to do individual practice, join a law firm, or act as an in-house counsel, each of these has its own rose garden and bed of thorns. But be clear and choose the path early in life. Once you do, you can follow that path and surely, you will get there.
(b) Use technology — These days, legal research is easier with the advent of various softwares. However, do not depend entirely on internet or softwares. Be agile and keep watching the proceedings- you will learn a lot from court proceedings and latest judgements. Of course, it is still useful to have a case note diary. I continue to have one.
(c) Use your free time wisely — Time is of essence in this profession. Make use of spare time to learn new laws, new skills in new areas of law or any other area of interest, so that you are up-to-date.
(d) Be updated with the latest judgments — It is very important to have knowledge of the latest judgments in your field, because that is what will carry you forward.
(e) Develop a hobby — Spend time developing a hobby apart from law — that is important since our profession is very strenuous and stressful.
(f) Do your best for your client -But always remember — your duty is first to court, then comes client loyalty.
Wish you all the best.