Last week the US Supreme Court decided a case with far reaching consequences about the definition of a 'person' and whether it includes the 'sovereign' or not. Though the matter appears to be going into the depth of legal technicality, it is of critical importance to the everyday affairs in democratic countries, and, hence, this judgment can be of relevance to India also, as a persuasive precedent, if not to be followed mandatorily.

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A company, Return Post, came up with a method to process undelivered letters and filed for a patent. It should be noted that there have been major changes in the American patent law in 2011 and the statute is known as the America Invents Act, 2011. This law allowed three types of challenges to patents after the issuance by a 'person' which did not include the patent owner, and quite rightly so as it would be absurd for the patent owner to challenge the grant of patent. But, just to keep at least the absurd out of the possibility, the legislature made it specifically clear in the written law itself as one never knows the oddities of litigants and challengers.

The United States Postal Service (USPS) allegedly worked around the patent and prepared its own method of processing undelivered mail, and came up with an enhanced service of address-change. Return Post was not at all amused with this development and it sued USPS for infringement of its patent. In obvious retaliation, USPS challenged the grant of patent to Return Mail under the 2011 law. The USPS is government owned and in that sense is 'sovereign'. The question arose for the consideration of the court was whether the USPS, as sovereign, was a 'person' in the eyes of law or not. Typically, anywhere a 'person' – until and unless the interpretation is strictly restricted to living and human beings – used in law means a corporate entity, and depending on the context it may also include other non-corporate artificial legal persons, like an idol under the Indian law, etc.

The concept of juristic person is of immense importance for the study and application of law. The creation of an artificial person – totally fictional – just like an assumption while solving problems in algebra, helps in understanding the various possibilities and thereafter applying the principles of law to the fictional person, as if it is living and acting on its own. However, the basic concept of law – according to the positive school and analytical school, which are quite practical and close to the functioning of society in most of the evolved civilisations – is that law is the "command of sovereign", and it is necessary that the sovereign only commands and does not take commands from anyone.

In such a scenario, whether the sovereign can be treated as a person in the eyes of law or not is a tricky question, but becomes quite simple when it has to be analysed in the light of the fundamental difference between the sovereign and any other person. Any entity controlled by the sovereign, directly or indirectly, cannot be called a person simpliciter. It, somehow, will show shades of sovereignty and that cannot be then treated as any person. While the sovereign itself is giving the authority to grant a patent, it would be clearly illogical for the sovereign to allow it to challenge the patent.

But, there is another view to be appreciated according to the ever expanding domain of administrative law in India. The functions of the sovereign – particularly related to the commercial activities which truly cannot be said to be sovereign functions – must be interpreted in a narrow sense and the commercial activities like the postal department need to be recognised independently. That would really bring a positive and practical change in the manner interpretation to the words like person and sovereign is done. It appears to be inconsistent – especially in countries like the United States which vouch for capitalism – that the role of the sovereign really expands to even delivering letters, which could have been acceptable a century ago, but not today.

The author is a professor at IIM-A, akagarwal@iima.ac.in