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REGISTERED No D- 221

The Gazette of India

EXTRAORDINARY

PART II—Section I

PUBLISHED BY AUTHORITY

No. 43] NEW DELHI, MONDAY, SEPTEMBER 21, 1970/BHADRA 30, 1892

Separate paging is given to this Part in order that it may be filed as a separate compilation.

MINISTRY OF LAW

(Legislative Department)

New Delhi, the 21st September, 1970|Bhadra 30, 1892 (Saka)

The following Act of Parliament received the assent of the President on the 19th September, 1970, and is hereby published for general information: —

THE PATENTS ACT, 1970

No. 39 OF 1970

[19th September, 1970]

An Act to amend the consolidate the law relating to patents.

BE it enacted by Parliament in the Twenty-first Year of the Republic

of India as follows: —

CHAPTER I

PRELIMINARY

1. (I) This Act may be called the Patents Act, 1970.

(2) It extends to the whole of India.

Short title, extent and commence- ment (3) It shall come into force on such date as the Central Government

may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provi- sions of this Act, and any reference in any such provision to the com- mencement of this Act shall be constructed as a reference to the coming into force of that provision.

(421)

2. (1) In this Act, unless the context otherwise requires,—

Definitions and inter- pretation.

(o) "assignee" includes the legal representative of a deceased assignee, and references to the assignee of any person include re- ferences to the assignee of the legal representative or assignee of that person;

(b) "Controller" means the Controller General of Patents, De- signs and Trade Marks referred to in section 73;

(c) "convention application" means an application for a patent made by virtue of section 135;

(d) "convention country" means a country notified as such under sub-section (1) of section 133;

(e) "district court" has the meaning assigned to that expression

5 of 1008.

by the Code of Civil Procedure, 1908;

(f) "exclusive licence" means a licence from a patentee which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the patentee), any right in respect of the patented invention, and "exclusive licensee" shall be construed accordingly;

(g) "food" means any article of nourishment and includes any substance intended for the use of babies, invalids or convalescents as an article of food or drink;

(h) "Government undertaking" means any industrial under- taking carried on—

(i) by a department of the Government, or

(ii) by a corporation established by a Central, Provincial or State Act, which is owned or controlled by the Government, or

(in) by a Government company as defined in section 617

1 of 1908 of the Companies Act, 1956,

and includes the Council of Scientific and Industrial Research and any other institution which is financed wholly or for the major part by the said Council;

(i) "High Court" means,—

(i) in relation to the Union territory of Delhi and the Union territory of Himachal Pradesh, the High Court of Delhi;

(ii) in relation to the Union territory of Manipur and the Union territory of Tripura, the High Court of Assam;

(iii) in relation to the Union territory of the Andaman ond NJcobar Islands, the High Court at Calcutta;

(iv) in relation to the Union territory of the Laccadlve, Minicoy and Amindivi Islands, the High Court of Keraja;

(v) in relation to the Union territory of Goa, Daman and Diu and the Union territory of Dadra and Nagar Haveli, the High Court at Bombay;

(vi) in relation to the Union territory of Pondicherry, the High Court at Madras;

(vii) in relation to the Union territory of Chandigarh, the High Court of Punjab and Haryana; and

(viii) in relation to any other State, the High Court far that State;

(j) "invention" means any new and useful—

(i) art, process, method or manner of manufacture;

(ii) machine, apparatus or other article;

(Hi) substance produced by manufacture,

and includes any new and useful improvement of any of them, and an alleged invention;

(k) "legal representative" means a person who in law represents the estate of a deceased person;

(I) "medicine or drug" includes—

(i) all medicines for internal or external use of human beings or animals,

(ii) all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals,

(vii) all substances intended to be used for or in the maintenance of public health, or the prevention or control of any epidemic disease among human beings or animals,

(iv) insecticides, germicides, fungicides, weedicides and all other substances intended to be used for the protection or pre- servation of plants;

(v) all chemical substances which are ordinarily used as

Intermediates in the preparation or manufacture of any of the

medicines or substances above referred to;

(m) "patent" means a patent granted under this Act and includes

2 of l i lt

for the purposes of sections 44, 49, 50, 51, 52, 54, 55, 56, 57, 58, 63, 63, 66, 68, 69, 70, 78, 134, 140, 153, 154 and 156 and Chapters XVI, XVII and XVIII, a patent granted under the Indian Patents and Designjs Act, 1911;

(n) "patent agent" means a person for the time being regis-

tered under this Ac!, ds a patent agent;

(o) "patented article" and "patented process" mean respectively

an article or process in respect of which a patent is in force;

(p) "patentee" means the person for the time being entered on

tne rej{ister as the grantee or proprietor of the patent;

(q) "patent of addition" means a patent granted in accordance with section 54;

(r) "patent office" means the patent office referred to in flection 74;

(s) "person" includes the Government;

(t) "person interested" includes a person engaged in, or in pro- moting, research in the same field as that to which the invention relates;

(u) "prescribed" means, in relation to proceedings before a High Court, prescribed by rules made by the High Court, and in other cases, prescribed by rules made under this Act;

(y) "prescribed manner" includes the payment of the prescribed iee;

(u?) "priority date" has the meaning assigned to it by section

(x) "register" means the register of patents referred to in sec- tion 67;

(y) "true and first inventor" does not include either the first importer of an invention into India, or a person to whom an invention la first communicated from outside India.

(2) In this Act, unless the context otherwise requires, any reference—

(a) to the Controller shall be construed as including a reference to any officer discharging the functions of the Controller in pursuance of section 73;

(b) to the patent office shall be construed as including a refer- once to any branch office of the patent office.

CHAPTER II

INVENTIONS NOT PATENTABLE

3. The following are not inventions within the meaning of this Act,—

(a) an invention which is frivolous or which claims any- What are not mven- Honi.

thing obviously contrary to well established natural laws;

(6) an invention the primary or intended use of which would be contrary to law or morality or injurious to public health;

(c) the mere discovery of a scientific principle or the formula- tion of an abstract theory;

(d) the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant;

(e) a substance obtained by a mere a d m i x t u re r e s u l t mg only in the aggregation of the properties of the components thereof or a process for producing such substance;

(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(SO a method or process of testing applicable during the pro- cess of manufacture for rendering the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacture;

(h.) a method of agriculture or horticulture;

(i) any process for the medicinal, surgical, curative, prophy- lactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products.

83 of 1062.

4. No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of section 20 of the Atomic Energy Act, 1962.

Inventions relating to atomic energy not patent- able.

5. In the case of inventions—

(a) claiming substances intended for use, or capable of being

used, as food or as medicine or drug, or

(b) relating to substances prepared or produced by chemical processes (including alloys, optical glass, semi-conductors and Inter-metallic compounds),

Inventions where only methods or pro- cesses of manufac- ture patent- able.

no patent shall be granted in respect of claims for the substances them- selves, but claims for the methods or processes of manufacture shall be patentable.

CHAPTER III

APPLICATIONS FOR PATENTS

6. (1) Subiect to the provisions contained in section 134, an applica- tion for a patent for an invention may be made by any of the following persons, that is to say,—

Persons entitled to apply for patents.

(a) by any person claiming to be the true and first inventor

of the invention;

(b) by any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application;

(c) by the legal representative of any deceased person who Immediately before his death was entitled to make such an application.

(2) An application under sub-section (I) may be made by any oi the persons referred to therein either alone or jointly with any other person,

Form of applica- tion.

7. (1) Every application for a patent shall be for one invention only and shall be made in the prescribed form and filed in the patent office.

(2) Where the application is made by virtue of an assignment of the right to apply lor a patent for the invention, there shall be furnished with th^ application, or within such period as may be prescribed after tho hhng of the application, proof of the right to make the application.

(3) Every application under this section shall state that the applicant is in possession of the invention and shall name the owner claiming to be the true and first inventor; and where the person so claiming is not the applicant or one of the applicants, the applica- tion shall contain a declaration that the applicant believes the per- son so named to be the true and first inventor.

(4) Every such application (not being a convention application) shall be accompanied by a provisional or a complete specification.

8. (1) Where an applicant for a patent under this Act is prosecuting either alone or jointly with any other person an application for a patent in any country outside India in respect of the same or substantially the same invention, or where to his knowledge such an application Is being prosecuted by some person through .whom he claims or by some person deriving title from, him, he shall file along with his application—

Informa- tion and under- taking regard- Ing foreign applica- tions.

(a) a statement setting out the name of the country where the application is being prosecuted, the serial number and date of filing of the application and such other particulars as may be prescribed; and

(b) an undertaking that, up to the date of the acceptance of his complete specification filed in India, he would keep the Controller informed in writing, from time to time, of details of the nature referred to in clause (a) in respect) of every other application relating to the same or substantially the same In- vention, if any, illed in any country outside India subsequently to the filing of the statement referred to in the aforesaid clause, within the prescribed time.

(2) The Controller may also require the applicant to furnish, as far as may be available to the applicant, details relating to the objec- tions, if any, taken to any suoh application as is referred to in sub-section (1) on the ground that the invention is lacking in novelty OT patentability, the amendments effected in the specifica- tions, the claims allowed in respect thereof and such other particulars as he may require.

Provi- sional and complete specifi- cations.

9. (1) Where an application for a patent (not being a convention application) is accompanied by a provisional specification, a complete specification shall be filed within twelve months from the date of filing of the application, and If the complete specification is not so filed the application shall be deemed to be abandoned:

Provided that the complete specification may be filed at any time after twelve months but within fifteen months from the date aforesaid, if a request to that effect is made to the Controller and the prescribed fee is paid on or before the date on which the complete specification Is filed.

(2) Where two or more applications in the name of the same appli- cant are accompanied by provisional specifications in respect of inven- tions which are co'gnate or of which one is a modification of another and the Controller is of opinion that the whole of such inventions are such as to constitute a single invention and may properly be includ- ed in one patent, he may allow one complete specification to be filed in respect of all such provisional specifications.

(3) Where an application for a patent (not being a convention appli- cation) is accompanied by a specification purporting to be a complete specification, the Controller may, if the applicant so requests at any time before the acceptance of the specification, direct that such specifica- tion shall be treated for the purposes of this Act as a provisional speci- fication and proceed with the application accordingly.

(4) Where a complete specification has been filed in pursuance of an application for a patent accompanied by a provisional specification or by a specification treated by virtue of a direction under sub-section (3) as a provisional specification, the Controller may, if the applicant so requests at any time before the prceptance of the complete specification, cancel the provisional speciflcati ^n and post-date the application to the date of filing of the complete specification.

Contents of specifica- tions.

19. (I) Every specification, whether provisional or complete, shall describe the invention and shall begin with a title sufficiently indicat- ing the subject-matter to which the invention relates.

(2) Subject to any rules that may be made in this behalf under this Act, drawings may, and shall, if the Controller so requires, be supplied for the purposes of any specification, whether complete or provisional; and any drawings so supplied shall, unless tho Controller otherwise directs, be deemed to form part of the specification, and references in this Act to a specification shall be construed accordingly.

(3) If, in any particular case, the Controller considers that an appli- cation should be further supplemented by a model or sample of any- thing Illustrating the invention or alleged to constitute an invention, such model or sample as he may require shall be furnished before the acceptance of the application, but such model or sample shall not be deemed to form part of the specification.

(4) Every complete specification shall—

(a) fully and particularly describe the invention and its opera- tion or use and the method by which it is to be performed;

(b) disclose the best method oJE performing the Invention which is known to the applicant and for which he is entitled to claim pro- tection; and

(c) end with a claim or claims defining the scope of the inven- tion for which protection is claimed.

(5) The claim or claims of a complete specification shall relate to a single invention, shall be clear and succinct and shall be fairly based on the matter disclosed in the specification and shall, in the case of an invention such as is referred to in section 5, relate to a single method or process of manufacture.

(6) A declaration as to the inventorship of the invention shall, in such cases as may be prescribed, be furnished in the prescribed form with the complete specification or within such period as may be pres- cribed after the filing of that specification.

(7) Subject to the foregoing provisions of this section, a complete specification filed after a provisional specification may include claims in respect of developments of, or additions to, the invention which was described in the provisional specification, being developments or addi- tions in respect of which the applicant would be entitled under the pro- visions of section 6 to make a separate application for a patent.

11. (2) There shall be a priority date for each claim of a complete specification.

(2) Where a complete specification is filed in pursuance of a single application accompanied by—

Priority dates of claims of a complete specifi-

cation.

(a) a provisional specification; or (b) a specification which is treated by virtue of a direction under sub-section (3) of section 9 as a provisional specification,

and the claim is fairly based on the matter disclosed in the specifica- tion referred to in clause (a) or clause (b), the priority date of that claim shall be the date of the filing of the relevant specification.

(3) Where the complete specification Is filed or proceeded with In pursuance of two or more applications accompanied by such specifica- tions as are mentioned in sub-section (2) and the claim is fairly based on the matter disclosed—

(a) in one of those specifications, the priority date of that claim shall be the date of the filing of the application accompanied by that specification;

(b) partly in one and partly in another, the priority date of that claim shall be the date of the filing of the application accompanied by the specification of the later date.

(4) Where the complete specification has been filed in pursuance of a further application made by virtue of sub-section (I) of section 16 and the claim is fairlv based on the matter disclosed in any of the earlier specifications, provisional or complete, as the case may be, the priority date of that claim shall be the date of the filing of that speci- fication in which the matter was first disclosed.

(5) Where, under .he foregoing provisions of this section, any claim of a complete specification would, but for the provisions of this sub-section, have two or more prioritv dates, the priority date of that claim shall be the earlier or earliest of those dates.

(6) In any case to which sub-sections (2), (3), (4) and (5) do noi apply, the priority date of a claim shall, subject to the provisions of section 137, be the date of filing of the complete specification.

(7) The reference to the date of the filing of the application or of the complete specification In this section shall, in cases where there has been a post-dating under section 9 or section 17 or, as the case may be, an ante-dating under section 16, be a reference to the date as so post-dated or ante-dated.

(8) A claim in a complete specification of a patent sfyall not be in- valid by reason only of—

(a) the publication or use of the Invention so far as claimed in that claim on or after the priority date of such claim; or

(b) the grant of another patent which claims the invention, so far as claimed in the first mentioned claim, in a claim of the same or a later priority date.

CHAPTER IV

EXAMINATION OP APPLICATIONS

Exami- nation of appli- cation. 12, (1) When the complete specification has been filed in respect of an application for a patent, the application and the specification relat- ing thereto shall be referred by the Controller to an examiner for making a report to him In respect of the following matters, namely:—

(a) whether the application and the specification relating there- to are In accordance with the requirements of this Act and of any rules made thereunder;

(b) whether there is any lawful ground of objection to the grant of the patent under this Act in pursuance of the application;

(c) the result of investigations made under section 13; and

(d) any other matter which may be prescribed.

(2) The examiner to whom the application and the specification relating thereto are referred under sub-section (1) shall ordinarily make the report to the Controller within a period of eighteen months from the date of such reference.

13. (1) The examiner to whom an application for a patent is refer- red under section 12 shall make Investigation for the purpose of ascer- taining whether the invention so far as claimed in any claim of the complete specification—

Search for anti- cipation by pre- vious publica- tion and by prior claim.

(a) has been anticipated by publication before the date of filing of the applicant's complete specification in any specification filed In pursuance of an application for a p<7 snt made in India and dated on or after the 1st day of January, 1912;

(b) Is claimed in any claim of any other complete specification published on or after the date of filing of the applicant's complete

specification, being a specification filed in pursuance of an applica- tion for a patent made in India and dated before or claiming the prio- rity date earlier than that date.

(2) The examiner shall, in addition, make such investigation as the Controller may direct for the purpose of ascertaining whether the inven- tion, so far as claimed in any claim of the complete specification, has been anticipated by publication in India or elsewhere in any document other than those mentioned in sub-section (2) before the date of filing of the applicant's complete specification.

(3) Where a complete specification is amended under the provisions of this Act before it has been accepted, the amended specification shall be examined and investigated in like manner as the original specification.

(4) The examination and investigations required under section 12 and this section shall not be deemed in any way to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer thereof by reason of, or in connection with, any such examination or investigation or any report or other proceedings con- sequent thereon.

Conside- ration of report of examiner by Con- troller.

14. Where, in respect of an application for a patent, the report of the examiner received by the Controller is adverse to the applicant or requires any amendment of the application or of the specification to ensure compliance with the provisions of this Act or of the rules made thereunder, the Controller, before proceeding to dispose of the appli- cation in accordance with the provisions hereinafter appearing, shall communicate the gist of the objections to the applicant and shall, if so required by the applicant within the prescribed time, give him an oppor- tunity of being heard.

15. (1) Where the Controller is satisfied that the application or any specification filed in pursuance thereof does not comply with the re- quirements of this Act or of any rules made thereunder, the Controller may either—

(a) refuse to proceed with the application; or

Power of Con- troller to refuse or require amend, ed applica- tions In certain cases.

(b) require the application, specification or drawings to be amended to his satisfaction before he proceeds with the application.

(2) If it appears to the Controller that the invention claimed in the specification is not an invention within the meaning of, or is not patent- able under, this Act, he shall refuse the application.

(3) If it appears to the Controller that any invention, in respect of which an application for a patent is made, might be used In any manner contrary to law, he may refuse the application, unless the specification Is amended bv the Insertion of such disclaimer in respect of that use Of the invention, or such other reference to the illegality thereof, as the Controller thinks fit.

16. (1) A person who has made an application for a patent under this Act may, at any time before the acceptance of the complete speci- fication, if he so desires, or with a view to remedy the objection raised by the Controller on the ground tfyat the claims of the complete speci- fication relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete speci- fication already filed in respect of the first mentioned application.

Power Of Con- troller to make orders respect- ing divi- sion of applica- tion.

{2) The further application under sub-section (1) shall be accom- panied by a complete specification, but such complete specification shall not include any matter not in substance disclosed in the complete speci- fication filed in pursuance of the first mentioned application.

(3) The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said com- plete specifications includes a claim for any matter claimed in the other.

Explanation.—For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the complete specification In pursuance of the first mentioned application had been filed, and the further application shall, subject to the determination of the priority date under sub-section (4) of section 11, be proceeded with as a sub- stantive application.

17. (1) Subject to the provisions of section 9, at any time after the filing of an application and before acceptance of the complete specifica- tion under this Act, the Controller may, at the request of the applicant made in the prescribed manner, direct that the application shall be post-dated to such date as may be specified in the request, and proceed with the application accordingly:

Power of Con- troller to makt order* respect- ing dating of appli- cation.

Provided that no application shall be post-dated under thia sub- section to a date later than six months from the date on which it waa actually made or would, but for the provisions of this sub-section, be deemed to have been made.

(2) Where an application or specification (including drawings) IS required to be amended under clause (b) of sub-section (i) of section 15, •the application or specification shall, if the Controller so directs, b* deemed to have been made on the date on which the requirement Is complied with or where the application or specification is returned to the applicant, on the date on which it is re-filed after complying with the requirement.

Powers of Con- troller in Cases of anti- cipation.

18. (1) Where it appears to the Controller that the invention so far a" claimed in any claim of the complete specification has been anticipated in the manner referred to in clause (a) of sub-section (1) or sub-section (2) of section 13, he may refuse to accept the complete specification unless the applicant--

(a) shows to the Satisfaction 01 the Controller that the priority date of the Claim of his complete specification is net later than th" date on which the relevant document was published; or

(b) amends his complete specification to the satisfaction of tne Controller.

(2) If it appears to the Controller that the invention is claimed in a claim of any other complete specification referred to in clause (b) of BUb-section (1) of section 13, he may, subject to the provisions herein- after contained, direct that a reference to that other specification Bhall be inserted by way of notice to the public in the applicant's complete (Specification unless within such time as may be prescribed,—

(a) the applicant shows to the satisfaction of the Controller that the priority date of his claim is not later than the priority date of the claim of the said other specification; or

(b) the complete specification is amended to the satisfaction of the Controller,

(3) If it appears to the Controller, as a result of an investigation under section 13 or otherwise,—

(a) that the invention so far as claimed In any claim of the applicant's complete specification has been claimed in any other complete specification referred to in clause (a) of sub-section (1) of section 13; and

(b) that such other complete specification was published on or after the priority date of the applicant's claim,

then, unless it is shown to the satisfaction of the Controller that the priority date of the applicant's claim is not later than the priority date of the claim of that specification, the provisions of sub-section (2) shall apply thereto in the same manner as they apply to a specification pub- lished on or after the date of filing of the applicant's complete specifica- tion.

(4) Any order of the Controller under Sub-section (2) or sub-section (3) directing the insertion of a reference to another complete specifica- tion shall be of no effect unless and until the other patent is granted.

Powers of Con- troller in caae of potential Infrliige- tnent.

19. (I) If, in consequence of the investigations required by the fofe- going provisions of this Act or of proceedings under section 25, it appears to the Controller that an invention in respect of which an application for a patent has been made cannot be performed without substantial risk of infringement of a claim of any other patent, he may direct that a reference to that other patent shall be inserted in the applicant's GGtft* plete specification by way of notice to the public, unless within such time as may be prescribed—

(a) the applicant shows to the satisfaction of the Controller that there are reasonable grounds for contesting the validity of the said claim of the other patent; or

(b) the complete specification is amended to the satisfaction of the Controller.

(2) Where, after a reference to another patent has been inserted in a complete specification in pursuance of a direction under sub-section (1) —

(a) that other patent is revoked or otherwise ceases to be in force; or

(b) the specification of that other patent is amended by tha deletion of the relevant claim; or

(c) it is found, in proceedings before the court or the Controller, that the relevant claim of that other patent is invalid or is not in- fringed by any working of the applicant's invention,

the Controller may, on the application of the applicant, delete the refer- ence to that other patent.

Powen of Con- troller to make orders regard- ing substi- tution of appli- cants, etc. 20. (1) If the Controller is satisfied, on a claim made in the prescribed manner at any time before a patent has been granted, that by virtue of any assignment or agreement in writing made by the applicant or one of the applicants for the patent or by operation of law, the claimant would, if the patent were then granted, be entitled thereto or to the Interest of the applicant therein, or to an undivided share of the patent or of that interest, the Controller may, subject to the provisions of this section, direct that the application shall proceed in the name of the claimant or in the names of the claimants and the applicant or the other joint applicant or applicants, accordingly as the case may require.

(2) No such direction as aforesaid shall be given by virtue of any assignment or agreement made by one of two or more joint applicants for a patent except with the consent of the other joint applicant or appli- cants.

(3) No such direction as aforesaid shall be given by virtue of any assignment or agreement for the assignment of the benefit of an invention unless—

(a) the invention is identified therein by reference to the num- ber of the application for the patent; or

(b) there is produced to the Controller an acknowledgment by the person by whom the assignment or agreement was made that the assignment or agreement relates to the invention in respect of which that application is made; or

(c) the rights of the claimant in respect of the invention have been finally established by the decision of a court; or

(d) the Controller gives directions for enabling the application to proceed or for regulating the manner in which it should be pro- ceeded with Under sub-section (5).

(4) Where one of two or more joint applicants for a patent dies at any time before the patent has been granted, the Controller may, upon a request in that behalf made by the survivor or survivors, and with the consent of the legal representative eff the deceased, direct that the application shall proceed in the name of the survivor or survivors alone,

(5) If any dispute arises between joint applicants for a patent whether or in what manner the application should be proceeded with, the Con- troller may, upon application made to him in the prescribed manner by any of the parties, and after giving to all parties concerned an oppor- tunity to be heard, give such directions as he thinks fit for enabling the application to proceed In the name of one or more of the parties alone or for regulating the manner In which it should be proceeded with, or for both those purposes, as the case may require.

Time for putting applica- tion in order for accept- ance.

21. (1) An application for a patent shall be deemed to have been abandoned unless within litteen months from the date on which the first statement of objections to the application or complete specification is forwarded by the Controller to the applicant ox within such longer period as may be allowed under the following provisions of this section the applicant has complied with all the itquirements imposed on him by or under this Act, whether in connection with the complete specification or otherwise in relation to the application.

Explanation.—Where the application or any specification or, in the case of a convention application, any document filed as part of the appli- cation has been returned to the applicant by the Controller in the course of the proceedings, the applicant shall not be deemed to have complied with such requirements unless and until he has re-filed it.

(2) The period of fifteen months specified in sub-section (!) shall, on request made by the applicant in the prescribed manner and before the expiration of the period so specified, be extended for a further period so requested (hereafter in this section referred to as the extended period), so, however, that the total period for complying with the requirements of the Controller does not exceed eighteen months from the date on which the objections referred to in sub-section (1) are forwarded to the applicant.

(3) If at the expiration of the period of fifteen months specified in nub-section (1) or the extended period—

(a) an appeal to the High Court is pending in respect of the application for the patent for the main invention, or

(fa) in the case of an application for a patent of addition, an appeal to the High Court is pending in respect of either that appli- cation or the application for the main invention,

the time within which the requirements of the Controller shall be com- plied with shall, on an application made by the applicant before the expiration of the said period of fifteen months or the extended period, as the case may be, be extended until such date as the High Court may determine.

(4) If the time within which the appeal mentioned in aub-nection (3) may be instituted has not expired, the Controller may extend the period of fifteen months, or as the case may be, the extended period, until the expiration of such further period as he may determine:

Provided that if an appeal has been fllad during the flaid further period, and the High Court has granted any extension of time for com- plying with, the requirements of the Controller, then, the requirements may be complied with within the time granted by the Court.

Accept- ance oi com- plete speci- fica- tion.

22. Subject to the provisions of section 21, the complete Specification filed in pursuance of an application for a patent may be accepted by the Controller at any time after the applicant has complied with the require- ments mentioned in sub-section (2) of that section, and, if not so accepted within the period allowed under that section for compliance with those requirements, shall be accepted as soon as may be thereafter:

Provided that the applicant may make an application to the Control- ler in the prescribed manner requesting him to postpone acceptance until such date [not being later than eighteen months from the date on which the objections referred to in sub-section (1) of section 21 are for- warded to the applicant] as may be specified in the application, and, if such application is made, the Controller may postpone acceptance accord- ingly.

23. On the acceptance of a complete specification, the Controller shall give notice thereof to the applicant and shall advertise in the Official Gazette the fact that the specification has been accepted, and thereupon the application and the specification with the drawings (if any) filed in pursuance thereof shall be open to public inspection.

Advertise merit of accep- tance of complete specifi- cation.

24. On and from the date of advertisement of the acceptance of a complete specification and until the date of sealing of a patent in respect thereof, the applicant shall have the like privileges and rights as if a patent for the invention had been sealed on the date of advertisement of acceptance of the complete specification:

Effect of accep- tance of complete specifi- cation.

Provided that the applicant shall not be entitled to¹ institute any pro- ceedings for infringement until the patent has been sealed.

CHAPTER V

Opposi- tion to grant of patent.

25. (1) At any time within four months from the date of advertise- ment of the acceptance of a complete specification under this Act (or within such further period not exceeding one month in the aggregate as the Controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid) any person interested may give notice to the Controller of opposition to the grant of the patent on any of the following grounds, namely: —

(a) that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the Invention or any part thereof from him or from a person under or through whom he claims;

(b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim—

(i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or

(U) in India or elsewhere, in any other document:

Provided that the ground specified In sub-clause ({{) shall not be available where such publication does not constitute an anticipation of the invention by virtue of sub-section (2) or sub- section (3) of section 29;

(e) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specifica- tion published on or after the priority dalo of the applicant's claim

and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the appli- cant's claim;

(d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim.

Explanation.—For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experi- ment only;

(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant's claim;

(f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patent- able under this Act;

(g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;

(h) that the applicant has failed to disclose to the Controller the information required by section 8 or has furnished the informa- tion which in any material particular was false to his knowledge;

(i) that in the case of a convention application, the application was not made within twelve months from the date of the first appli- cation for protection for the invention made in a convention country by the applicant or a person from whom he derives title,

but on no other ground.

(2) Where any such notice of opposition is duly given, the Controller shall notify the applicant and shall give to the applicant and the oppo- nent an opportunity to be heard before deciding the case.

(3) The grant of a patent shall not be refused on the ground stated in clause (c) of sub-section (1) if no patent has been granted in pursu- ance of the application mentioned in that clause; and for the purpose of any inquiry under clause (d) or clause (e) of that sub-section, no account shall be taken of any secret use.

26. (i) Where in any opposiuon proceeding under this Act—

(a) the Controller rinds that the invention, so far as claimed ir any claim of the complete specification, was obtained from the oppo- nent in the manner set out in clause (a) of sub-section (2) of section 25 and xelufa..^ the application on that ground, he may, on request by such opponent made in the prescribed manner, direct that the application snail piueeed in me name 01 tue opponent as ii. the appli- cation and me specification had been filed by the opponent on the daie on which they were actually filed;

In cases of "ob- taining" Control- ler may- treat applica- tion a" applica- tion of oppo- nent.

(b) the Controller finds that a part of an invention described in the complete specification was so obtained from the opponent and passes an order requiring that the specification be amended by the exclusion of that part of the invention, the opponent may, subject to the provisions of sub-section (2), file an application in accordance with the provisions of this Act accompanied by a complete specifica- tion for the grant of a patent lor the invention so excluded frorr, the applicant's specification, and the Controller may treat such appli- cation and specification as having be<-n filed, for the purposes of this Act relating to the priority dates ol claims of the complete specifica- tion, on the date on which the corresponding document was or was deemed to have been filed by the earlier applicant, but for all other purposes the application of the opponent shall be proceeded with as an application for a patent under this Act.

(2) Where an opponent has, before the date of the order of the Con- troller requiring the amendment of a complete specification referred to in clause (b) of sub-section (1), filed an application for a patent for an invention which includes the whole or a pail of the invention held to have been obtained from him and such application is pending, the Con- troller may treat such application and specification in so far as they relate to the invention held to have been obtained from him, as having been filed, for the purposes of this Act relating to the priority dates of claims of the complete specification, on the date on which the corres- ponding document was or was deemed to have been filed by the earlier applicant, but for all other purposes the application of the opponent shall be proceeded with as an application for a patent under this Act.

Refusal of patent without opposi- tion- 27. If at any time after the acceptance of the complete specification filed in pursuance of an application for a patent and before the grant of a patent thereon it comes to the notice of the Controller otherwise than in consequence of proceedings in opposition to the grant under section 25, that the invention, so far as claimed in any claim of the complete specification, has been published before the priority date of the claim—

(a) in any specification filed in pursuance of an application for a patent made in India and dated on or after the 1st day of January, 1912;

(fa) in any other document in India or elsewhere,

the Controller may refuse to grant the patent unless, within such time as may be prescribed, the complete specification is amended to his satis- faction:

Provided that the Controller shall not refuse to grant the patent on

the ground specified in clause (t>) ii such publication does not constitute

an anticipation of the invention by virtue of sub-section (2) or sub-section (3) of section 29.

28. (/) If the Controller is satisfied, upon a request or claim made in accordance with the provisions of this section,—

Men- tion of inven- lur aa stich iri fiatent.

(a) that the person in respect of or by whom the request or claim is made is the inventor of an invention in respect of which application for a patent has beiin made, or of a substantial part of that invention; and

(b) that the application for the patent is a direct consequence of his being the inventor,

the Controller shall, subject to the provisions of this section, cause him to be mentioned as inventor in any patent granted in pursuance of the application in the complete specification and in the register of patents:

Provided that the mention of any person as inventor under this sec- tion shall not conter or derogate from any rights under the patent.

(2) A request that any person shall be mentioned as aforesaid may be made in the prescribed manner by the applicant for the patent or (where the person alleged to be the inventor is not the applicant or one of the applicants) by the applicant and that person.

(3) If any person Lother than a person in respect of whom a request in relation to the application in question has been made under sub-sec- tion (2)] desires to be mentioned as aforesaid, he may make a claim m the prescribed manner in that behalf.

(-/) A request or claim under the foregoing provisions of this sec- uon shall be made not later than two months after the date of adver- tisement of acceptance of the complete specification or within such fur- ther period (not exceeding one month) as the Controller may, on an application made to him in that behalf before the expiration of the said period oi two months and subject to the payment of the prescribed fee, allow.

^5) No request or claim under the foregoing provisions of this sec- tion shall be entertained if it appears to the Controller that the request or claim is ba^ed upon facts which, if proved in the case of an opposi- tion under the provisions of clause (a) of sub-section (i) of section 25 by the person in respect of or by whom the request or claim is made, would have entitled him to relief under that section.

(6) Subject to the provisions ol sub-section (5), where a claim Is made under sub-section (3), the Controller shall give notice of the claim to every applicant for the patent (not being the claimant) and to any other person whom the Controller may consider to be interested; and before deciding upon any request or claim made under sub-section (2) or sub-section (3), the Controller shall, if required, heiar the person in respect of or by whom the request or claim is made, and, in the case of a claim under sub-section (3), any person to whom notice of the claim has been given as aforesaid.

(7) Wheie any person has been mentioned as invent _r in pursuance of this section, any other person who alleges that he ought not to have

been so mentioned may at any time apply to the Controller for a cer- tificate to that effect, and the Controller may, after hearing, if requir- ed, any person whom he may consider to be interested, issue such a certificate, and if he does so, ho shall rectify the specification and the register accordingly.

CHAPTER VI

ANTICIPATION

29. (I) An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only that the invention was published in a specification filed in pursuance of an application for a patent made in India and dated before the" 1st day of January, 1912.

Anticipa- tion by previout publica- tion.

(2) Subject as hereinafter provided, an invention claimed in a complete specification shall not be deemed to have been anticipated by reason only that the invention was published before the priority date of the relevant claim of the specification, if the patentee or the applicant for the patent proves—

(a) that the matter published was obtained from him! or f'vhere he is not himself the true and first Inventor) from any person from whom he derives title, and was published without his consent or the consent of any such person; and

(b) where the patentee or the applicant for the patent or any person from whom he derives title learned of the publication before the date of the application for the patent, or, in the case of a convention application, before the date of the application for protec- tion in a convention country, that the application or the application In the convention country, as the case may be, was made as soon as reasonably practicable thereafter:

Provided that this sub-section shall not apply if the invention was before the priority date of the claim commercially worked in India, other- wise than for the purpose of reasonable trial, either by the patentee or the applicant for the patent or any person from whom he derives title or by any other person with the consent of the patentee or the applicant for the patent or any person from whom he derives title.

(3) Where a complete specification is filed in pursuance of an applica- tion for a patent made by a person being the true and first inventor or deriving title from him, an invention claimed in that specification shall not be deemed to have been anticipated by reason only of any other appli- cation for a patent in respect of the same invention made in contravention of the rights of that person, or by reason nnly that after the date of filing of that other application the invention was used or published, without the consent of that person, by the applicant in respect of that other applica- tion, or by any other person in consequence of any disclosure of any in- vention by that applicant.

30. An invention claimed in a complete specification shall not be deem- ed to have been anticipated by reason only of the communication of the Invention to the Government or to any person authorised by the Govern- ment to investigate the invention or its merits, or of anything done, in qonnecjuencc of such a communication, for the purpose nf the investigation.

Anticipa- tion by previous communi- cation to Govern- ment,

31. An invention claimed in a complete specification shall not be deem- ed to have been anticipated by reason only of—

Anticipa- tion by public display, etc.

(a) the display of the invention with the consent of the true and first inventor or a person deriving title from him at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification in the Official Gazette, or the use thereof with his consent for the purpose of such an exhibition in the place where it is held; or

(b) the publication of any description of the invention in conse- quence of the display or use of the invention at any such exhibition as aforesaid; or

(c) the use of the invention, after it has been displayed or used at any such exhibition as aforesaid and during the period of the exhibition, by any person without the consent of the true and first Inventor or a person deriving title from him; or

(d) the description of the invention in a paper read by the true and first inventor before a learned society or published with his con- sent in the transactions of such a society,

if the application for the patent is made by the true and first inventor or a person deriving title from him not later than six months after the open- ing of the exhibition or the reading or publication of the paper, as the case may be.

Anticipa-

tion by

public

working.

32. An invention claimed in a complete specification shall not be deemed to hove been nnticipa+pd by reiPon only that at any time within one year before the- priority date of the relevant claim of the specifica- tion, the invention was publiclv worked in India—

(a) by the patentee or applicant for the patent or any person from whom he derives title; or

(b) by any other person with the consent of the patentee or applicant for the patent or any person from whom he derives title,

if the working was effected for the purpose of reasonable trial only and if it was reasonably necessary, having regard to the nature of the Invention, that the working for that purpose should be effected in pub- lic.

Anticipa-

tion by

uae and

publica-

tion after

provi-

sional

specifica-

tion.

33. (1) Where a complete specification is filed or proceeded with in pursuance of an application which was accompanied by a provisional spe- cification or where a complete specification filed along with an applica- tion Is treated by virtue of a direction under sub-sectinn (3) of section 9 as a provisional specification, then, notwithstanding anything contained In this Act, the Controller shall not refuse to grant the patent, and the patent shall not be revoked or invalidated, bv reason onlv that any matter described In the provisional ippciflcation or in the specification treated as aforesaid as a provision! sn^ific-ttfon was used in Tndia or published In India or elsewhere at any time after thf dnte o* the filing of that spe- cification.

(2) Where a complete specification is filed In pursuance of a conven- tion application, then, notwithstanding anything contained in this Act, the Controller shall not refuse to grant the patent, and the patent shall not

be revoked or invalidated, by reason only that any matter disclosed in any application for protection in a convention country upon which the con- vention application is founded was used in India or published in India 01 elsewhere at any time after the dale of that application for protection.

34. Notwithstanding anything contained in this Act, the Controller shall not refuse to accept a complete specification for a patent or to grant a patent, and a patent shall not be revoked or invalidated by reason only of any circumstances which, by virtue of section 29 or section 30 or section 31 or section 32, do not constitute an anticipation of the invention claimed in the specification,

No anti- cipation ii circum- stances are only as des- cribed in sections 29, 30, 31 and 32,

CHAPTER VII

PROVISIONS FOH SECRECY OF CERTAIN INVENTIONS

Secrecy directions relating to inven- tions rele- vant for defence purposes.

35. (1) Where, in respect of an application made before or after the commencement of this Act for a patent, it appears to the Controller that the invention is one of a class notified to him by the Central Government as relevant for defence purposes, or, where otherwise the invention ap- pears to him to be so relevant, he may give dir^tJions for prohibiting or restricting the publication of information with respect to the Invention or the communication of such information to any person or class of per- sons specified in the directions.

(2) Where the Controller gives any such directions as are referred to in sub-section (2), he shall give notice of the application and of the direc- tions to the Central Government, and the Central Government shall, upon receipt of such notice, consider whether the publication of the invention would be prejudicial to the defence of India, and if upon such considera- tion, it appears to it that the. publication of the invention would not so prejudice, give notice to the Controller to that effect, who shall thereupon revoke the directions and notify the applicant accordingly.

(3) Without prejudice to the provisions contained in sub-section (I), where the Central Government is of opinion that an invention in respect of which the Controller has not given any directions under sub-section (I), is relevant for defence purposes, it may at any time before accept- ance of the complete specification notify tho Controller to that effect, and thereupon the provisions of that sub-section shall apply as if the inven- tion were one of the class notified by the Central Government, and accord- ingly the Controller shall give notice to the Central Government of the directions Issued by him.

Secrecy direc- tions to be periodi- cally re- viewed.

36. (1) The question whether an invention in respect of which direc- tions have been given under section 35 continues to be relevant for de- fence purposes shall be re-considered by the Central Government within nine months from the date of issue of such directions and thereafter at Intervals not exceeding twelve months, and if, on such rp-consideration it appears to the Central Government that the publication of the Invention would no longer be prejudicial to the defence of India it shall forthwith give notice to the Controller accordingly and the Controller shall there- upon revoke the directions previously given by him.

(2) The result of every re-consideration under sub-section (I), shall be communicated to the applicant within such time and In such manner as may be prescribed.

37. (I) So long as any directions under section 35 are in force In respect

of an application-

fa) the Controller shall not pass an order refusing to accept the Conse- quences of secrecy direc- tions.

same; and

(b) notwithstanding anything contained in this Act, no appeal shall lie from any order of the Controller passed in respect thereof:

Provided that the application may, subject to the directions, proceed up to the stage of the acceptance of the complete specification, but the acceptance shall not be advertised nor the specification published, and no patent shall be granted in pursuance of the application.

(2) Where a complete specification filed In pursuance of an application for a patent for an invention in respect of which directions have been given under section 35 is accepted during the continuance in force of the directions, then—

(a) if, during the continuance in force of the directions, any use of the invention is made by or on behalf of, or to the order of the Government, the provisions of sections "100, 101 and 103 shall apply In relation to that use as if the patent had been granted for the in vention; and

(b) if it appears to the Central Government that the applicant for the patent has suffered hardship bv reason of the continuance in force of the directions, the Central Government may make to him such payment (if any) bv wav of solatium as appears to the Central Government to be reasonable having regard to the noveltv and utilitv of the invention and the purpose for which it is designed, and to any other relevant circumstances.

(3) Where a patent i? granted in pursuance of an application in respect of which directions have been given under section 35, no renewal fee shall be payable in respect of any period during wbich those directions were in force.

Revoca- tion of secrecy direc- tions and extension of time.

38. When anv direction given under section 35 is revoked by the Con- troller, then, noiwithsianrHnu anv provision of thi^ Act cpecifvinp the time within which any step should be taken or anv act done in connection with an application for the patent, the Controller may, subiect to such condi- tions, if any, as he thinks fit to impose, extend the time for doing any- thing rpquired or authorised to bo done by or under this Act in connec- tion with the application, whether or not that time has previously expired.

39. (1) No person resident in India shall, except under the authority of a written permit granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless—

Residents not to apply for patents outside India without prior per- mtssloYi,

(a) an application for a patent for the same invention has been made in Tndia, not less than six weeks before the application outside India; and

(b) either no directions have been given under sub-section (1J of section 35 in relation to the application in India, or all such direc tions have been revoked.

(2) The Controller shall not grant written permission to any person t< make any application outside India without the prior consent of the Cen tral Government.

(3) This section shall not apply in relation to an invention for whicl an application for protection has first been filed in a country outside Indii by a person resident outside India.

Liability for con- traven- tion of section 35 or section 39.

40. Without prejudice to the provisions contained in Chapter XX, i: in respect of an application fur a patent any person contiavenes any direc tion as to secrecy given by the Controller under section 35 or makes 0: causes to be made an application for the grant of a patent outside India ii contravention of section 39, the application for patent under this Ac' shall be deemed to have been abandoned and the patent granted, if any shall be liable to be revoked under section 64.

41. All orders of the Controller giving directions as to secrecy as wel' as all orders of the Central Government under this Chapter shall be fina^ and shall not be called in question in any court on any ground whatsoever

Finality of orders of Con- troller and Central Govern- ment.

Savings respect- ing dis- closure to Gov- ernment.

42. Nothing In this Act shall be held to prevent the disclosure by the Controller of information concerning an application for a patent or a spe- cification filed in pursuance thereof to the Central Government for the purpose of the application or specification being examined for consider- ing whether an order under this Chapter should be made or whether an order so made should be revoked,

CHAPTER VIII

GRANT AND SEALING OF PATENTS AND RIGHTS CONFERRED THEREBY

43. (1) Where a complete specification in pursuance of an applica-

tion for a patent has been accepted and either—

(a) the application has not been opposed under section 25 and

Gratit and sealing of patent.

the time for the filing of the opposition has expired; or

(b) the application has been opposed and the opposition has

been finally decided in favour of the applicant; or

(c) the application has not been refused by the Controller by

virtue of any power vested in him by this Act,

the patent shall, on lequest made by the applicant in the prescribed form, be granted to the applicant or, in the case of a joint application, to the applicants jointly, and the Controller shall cause the patent to be sealed with the seal of the patent office and the date on which thp patent is sealed shall be entered in the register.

(2) Subject to the provisions of sub-section (1) and of the provi- sions of this Act with respect to patents of addition, a request under thu-

section for the sealing of a patent shall be made not later than the ex piration of a period of six months from the date of advertisement o. the acceptance of the complete specification:

Provided that—

(a) where at the expiration of the said six months any proceed- ing in relation to the application for the patent is pending before the Controller Or the High Court, tlie request may be made within the prescribed period after the final determination of that proceeding;

(b) where the applicant or one of the applicants has died be- fore the expiration of the time within which under the provision: of this sub-section the request could otherwise be made, the said request may be made at any time within twelve months after thp date of the death or at such later time as the Controller may allow,

(3) The period within which under sub-section (2) a request for the sealing of a patent may be made, may, from time to time, be extendec by the Controller to such longer period as may be specified in an ap- plication made to him in that behalf, if the application is made and th( prescribed fee paid within that longer period:

Provided that the first mentioned period shall not be extended under

this sub-section by more than three months in the aggregate.

Explanation,—For the purposes of this section a proceeding shall be deemed to be pending so long as the time for any appeal therein (apart from any future extension of that time) has not expired, and a proceed- ing shall be deemed to be finally determined when the time for any appeal therein (apart from any such extension) has expired without the appeal being brought.

Amend- ment of patent granted to da- ceased appli- cant.

•14. Where, at any time after a patent has been sealed in pursuance of an application under this Act, the Controller is satisfied that the person to whom the patent was granted had died, or, in the case of a body corporate, had ceased to exist, before the patent was sealed, the Controller may amend the patent by substituting for the name of that person the name of the person to whom the patent ought to have been granted, and the patent shall have effect, and shall be deemed always to have had effect, accordingly.

Date of patent.

45. (i) Subject to the other provisions contained in this Act, every patent shall be dated as of the date on which the complete specification was filed:

2 of 1911.

Provided that a patent which is granted in pursuance of an applica- tion to which any directions issued under section 78C of the Indian Patents and Designs Act, 1911 applied immediately before the commence- ment of this Act, shall be dated as of the date of the filing of the complete specification or the date of such commencement whichever is later.

(2) The date of every patent shall be entered in the register.

(3) Notwithstanding anything contained in this section, no suit or other proceeding shall bo commenced or prosecuted in respect of an in- fringement committed before the date of advertisement of the acceptance of the complete specification.

46. (1) Every patent shall be in the prescribed form and shall have

effect throughout India.

(2) A patent shall be granted lor unt' invention only:

Form, extent and effect of patent.

Provided that it shall not be competent for any person in a suit or other proceeding to take any objection to a patent nn the ground that it has been granted for more than one invention.

47. The grant of a patent under this Act shall be bubject to the con-

dition that—

Grant of patents to be subject to certain conditions.

(1) any machine, apparatus or other article in respect of which the patent is granted or any article made by using a process in res- pect oi which the patent is granted, may bo imported or made by or on behalf of the Government for the purpose merely of its own use;

{?.) any process in respect of which the patent is grants I may be used by or on behalf of the Government for the purpose 1 jerely of its own use;

(3) any machine, apparatus or other article in respect of which the patent is granted or any article made by the use of the process in respect of which the patent is granted, may be made or used, and any process in respect of which the patent is granted may be used, by any person, for the purpose merely of experiment or research Including the imparting of instructions to pupils; and

(4) in the case of a patent in respect of any medicine or drug,

the medicine or drug may be imported by the Government for the purpose merely of its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the Government or any other dispensary, hospital or other medical institution which the Central Government may, having regard to the public service that such dispensary, hospital or medical institution renders, specify in this behalf by notification in the Official Gazette.

Rights of patentees, 48. (2) Subject to the other provisions contained in this Act, a patent granted before the commencement of this Act, shall confer on the paten- tee the exclusive right by himself, his agents or licensees to make, use, exercise, sell or distribute the invention in India.

(2) Subject to the other provisions contained in this Act and the con- ditions specified in section 47, a patent granted after the commencement of this Act shall confer upon the patentee—

(0) where the patent is for an article or substance, the exclusive right by himself, his agents or licensees to make, use, exercise, .sell or distribute such article or substance in India;

(b) where a patent is for a method or process of manufacturing an article or substance, the exclusive right by himself, his agents or licensees to use or exercise the method or process in India.

49. (1) Where a vessel or aircraft registered in a foreign country or a land vehicle owned by a person ordinarily resident in such country- comes into India (including the territorial waters thereof) temporarily or accidentally only, the rights conferred by a patent for an invention shall not be deemed to be infringed by the use of the invention—

(a) in the body of the vessel or in the machinery, tackle, appa- ratus or other accessories thereof, so far as the invention is used on board the vessel and for its actual needs only; or

Patent rights iiot infringed when used on foreign vessels, etc., tempo- rarily or accident- ally In India.

(b) in the construction or working of the aircr.iTt or land vehicle or of the accessories thereof,

cs the case may be.

(2) This section shall not extend to vessels, aircraft or land vehicles owned by persons ordinarily resident in a foreign country the laws of which do not confer corresponding rights with respect to 1'ie ir^ of in- ventions in vessels, aircraft or land vehicles owned by persjns ordinarilv resident in India while in the ports or within the territorial waters of that foreign country or otherwise within the jurisdiction of its courts.

50. (1) Where a patent is granted to two or more persons, each of those persons shall, unless an agreement to the contrary Is in force, be entitled to an equal undivided share in the patent.

Rights of co- owners of patents.

(2) Subject to the provisions contained in this section and in section 51, where two or more persons are registered as grantee or proprietor of a patent, then, unless an agreement to the contrary is in force, each of those persons shall be entitled, by himself or his agents, to make, use, exercise and sell the patented invention for his own benefit without ac- counting to the other person or persons.

(3) Subject to the provisions contained in this section and in section 51 and to any agreement for the time being in force, where two or more persons are registered as grantee or proprietor of a patent, then, a licence under the patent shall not be granted and a share in the patent shall not be assigned by one of such persons except with the consent of the other person or persons.

(4) Where a patented article is sold by one of two or more persons registered as grantee or proprietor of a patent, the purchaser and any person claiming through him shall be entitled to deal with the article in the same manner as if the article had been sold by a sole patentee.

(5) Subject to the provisions contained in this section, the rules of law applicable to the ownership and devolution of movable property generally shall apply in relation to patents; and nothing contained in sub-section 0) or sub-section (2) shall affect the mutual rights or obligations of trustees or of the legal representatives of a deceased person or their rights or obligations as such.

(6) Nothing in this section shall affect the rights of the assignees of n partial interest in a patent created before the commencement of this Act.

Power of Control- ler to give directions to co- owners.

51. (1) Where two or more persons are registered as grantee or pro- prietor of a patent, the Controller may, upon application made to him in the pi escribed manner by any oi those persons,, give such directions in accordance whh the application as to the sale or lease of the patent or any inteiest therein, me giant of licences under the patent, or the exer- cise oi any light under section 50 in relation thereto, as he thinks fit.

(2) If any person registered as grantee or proprietor of a patent fails to execute any instrument or to do any other thing required for the carry- ing out ot any direction given under this section within fourteen days after being requested in writing so to do by any of the other persons sc registered, Lhe Conti oiler may, upon application made to him in the pres- cribed manner by any such other person, give directions empowering any person to execute that instrument or to do that thing in the name and on behalf of the person in default.

(3) Before giving any directions in pursuance of an application under this section, the Controller shall give an opportunity to be heard—

(a) in the case ox an application under sub-section (1), to the other person or persons registered as grantee or proprietor of the patent;

(b) in the case of an application under sub-section (2), to the person in default.

(4) No direction shall be given under this section so as to affect the mutual rights or obligations of trustees or of the legal representatives of a deceased person or of their rights or obligations as such, or which is in- consistent with the terms of any agreement between persons registered as grantee or proprietor of the patent.

Grant of patent to true and first inven- tor where it has been obtained by another in fraud of him.

52. (1) Where a patent has been revoked on the ground that the patent was obtained wrongfully and in contravention of the rights of the petitioner or any person under or through whom he claims, or, where in a petition for revocation, the court, instead of revoking the patent, directs the complete specification to be amended by the exclusion of a claim or claims in consequence of a finding that the invention covered by such claim or claims had been obtained from the petitioner, the court may, by order passed in the same proceeding, permit the grant to the petitioner of the whole or such part of the invention which the court finds has been wrongfully obtained by the patentee, in lieu of lhe patent so revoked or is excluded by amendment.

(2) Where any such order is passed, the Controller shall, on request by the petitioner made in the prescribed manner grant to him—

(i) in cases where the court permits the whole of the patent to be granted, a new patent bearing the same date and number as the patent revoked;

(ii) in cases where the court permits a part only of the patent to be granted, a new patent for such part bearing the same date as the patent revoked and numbered in such manner as may be prescrib- ed:

Provided that the Controller may, as a condition of such grant, require the petitioner to file a new and complete specification to the

aatisfaction of the Controller describing and claiming that part of the invention for which the patent is to be granted.

(3) No suit shall be brought for any infringement of a patent granted Under this section committed before the actual date on which such patent was granted.

53. (1) Subject to the provisions of this Act, the term of every pateni Term of patent.

granted under this Act shall—

(a) in respect of an invention claiming the method or process of manufacture of a substance, where the substance is intend- ed for use, or is capable of being used, as food or as a medicine or drug, be five years from the date of sealing of the patent, or seven years from the date o£ the patent whichever period is shorter; and

(b) in respect of any other invention, be fourteen years from the date of the patent.

(2) A patent shall cease to have effect notwithstanding anything therein or in this Act on the expiration of the period prescribed for the payment of any renewal fee, if that fee is not paid within the prescribed period or within that period as extended under this section.

(.3) The period prescribed for the payment of any renewal fee shall be extended to such period, not being more than six months longer than the prescribed period, as may be specified in a request made to the Con- troller if the request is made and the renewal fee and the prescribed additional fee paid before the expiration of the period so specified.

CHAPTER IX

PATENTS OF ADDITION

Patents of addition.

54. (1) Subject to the provisions contained in this section, where an application is invade for a patent in respect of any improvement in or modification of an invention described or disclosed in the complete specification filed therefor (in this Act referred to as the "main in- vention") and the applicant also applies or has applied for a patent for that invention or is the patentee in respect thereof, the Control- ler may, if the applicant so requests, grant the patent for the improve- ment or modification as a patent of addition.

(2) Subject to the piovisjons contained in this section, where an invention, being an improvement in or modification of another inven- tion, is the subject of an independent patent and the patentee in respect of that patent is also th<_- patentee in respect of the patent for the main invention, the Controller may, if the patentee so requests, by order, revoke the patent for the improvement or modification and grant to the patentee a patent of addition in respect thereof, bearing the same date as the date of the patent so revoked.

(3) A patent shall not be granted /as ; patent of addition unless the diite of filing of the complete specification was the same as or later than the date of filing of the complete specification in respect of the main in- vention.

(4) A patent of addition shall not be sealed before the sealing of the patent for the main invention; and ii' the period within which, but for the provisions of this sub-section, a request for the sealing of a patent of addition could be made under section 43 expires before the period with- in which a request for the sealing of the patent for the main invention may be so made, the request for the sealing of the patent of addition may be made at any time within the last mentioned period.

Term of patents of addition.

55. (1) A patent of addition shall be granted for a term equal to that of the patent for the main invention, or so much thereof as has not ex- pired, and shall remain in force during that term or until the previous cesser of the patent for the main invention and no longer:

Provided that if the patent for the main invention is revoked under this Act, the court, or, as the case may be, the Controller, on request made to him by the patentee in the prescribed manner, may order that the patenL of addition shall become an independent patent for the re- mainder of the term for the patent Cor the main invention and there- upon the patent shall continue in force as an independent patent accord- ingly.

(2) No renewal fees shall be payable in respect of a patent of addi- tion, but, if any such patent becomes an independent patent under sub- section (1), the same fees shall thereafter be payable, upon the same dates, as if the patent had been originally granted as an independent patent.

Validity of patents of addition.

5G. (1) The grant of a patent of addition shall not be refused, and a patent gi anted as a patent of addition shall not be revoked or invali- dated, on the ground only that the invention claimed in the complete spe- cification does not involve any inventive step having regard to any publi- cation or use of—

(a) the main invention described in the complete specification relating thereto; or

(b) any improvement in or modification of the main invention described in the complete specification of a patent of addition to the patent for the main invention or of an application for such a patent of addition,

and the validity o£ a patent of addition shall not be questioned on the ground that the invention ought to have been the subject of an indepen- dent patent.

(2) For the removal of doubts it is hereby declared that in determin- ing the novelty of the invention claimed in the complete specification filed in pursuance of an application for a patent of addition regard shall be had also to the complete specification in which the main invention is described.

CHAl'1-.tiK A

AMENDMENT OF APPLICATIONS AND SPECIFICATIONS

57. (1) Subject to the provisions of section 59, the Controller may, upon application made under this section in the prescribed manner by an applicant for a patent or by a patentee, allow the application for the patent or the complete specification to be amended subject to such con- ditions, if any, as the Controller thinks fit:

Amend- ment of applica- tion and specifica- tion be- fore Con- troller.

Provided that the Controller shall not pass any order allowing or refusing an application to amend an application for a patent or a specifi- cation under this section while any suit before a court for the infringe- ment of the patent or any proceeding before the High Court for the revocation of the patent is pending, whether the suit or proceeding com- menced before or after the filing of the application to amend.

(2) Every application for leave to amend an application for a patent or a specification under this section shall state the nature of the propos- ed amendment, and shall give full particulars of the reasons for which the application is made.

(3) Every application for leave to amend an application for a patent or a specification under this section made after the acceptance of the complete specification and the nature of the proposed amendment shall be advertised in the prescribed manner.

(4) Where an application is advertised under sub-section (3), any per* son interested may, within the prescribed period after the advertisement thereof, give notice to the Controller of opposition thereto; and where such a notice is given within the period aforesaid, the Controller shall notify the person by whom the application under this section is made and shall give to that person and to the opponent an opportunity to be heard before he decides the case.

(5) An amendment under this section of a complete specification may be, or include, an amendment of the priority date of a claim.

(6) The provisions of this section shall be without prejudice to the right of an applicant for a patent to amend his specification to comply with the directions of the Controller issued before the acceptance of the complete specification or in the course of proceedings in opposition to the grant of a patent.

Amend- ment of specifica- tion before High Court.

58. (1) In any proceeding before the High Court for the revocation of a patent, the High Court may, subject to the provisions contained in section 59, allow the patentee to amend his complete specification in such manner and subject to such terms as to costs, advertisement or other- wise, as the High Court may think fit, and if in any proceedings for revo- cation the High Court decides that the patent is invalid, it may allow the specification to be amended under this section instead of revoking the patent.

(2) Where an application for an order under this section is made to the High Court, the applicant shall give notice of the application to the Controller, and the Controller shall be entitled to appear and be heard, and shall appear if so directed by the High Court.

(3) Copies of all orders of the High Court allowing the patentee to amend the specification shall be transmitted by the High Court to the Controller who shall on receipt thereof cause an entry thereof and refe- rence thereto to be made in the register.

Supple- mentary provisions us to amend- ment of applica- tion or specifica- tion.

59. (1) No amendment of an application for a patent or a complete specification shall be made except by way of disclaimer, correction or ex- planation, and no amendment thereof shall be allowed, except for the purpose of correcting an obvious mistake, and no amendment of a com- plete specification shall be allowed the effect of which would be that the specification as amended would claim or describe matter not in subs- tance disclosed in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specification before the amendment.

(2) Where after the date of advertisement of acceptance of a com- plete specification, any amendment of the specification is allowed by the Controller or by the High Court,—

(a) the amendment shall for all purposes be deemed 1o form part of the specification;

(b) the fact that the specification has been amended shall be ad- vertised in the Official Gazette; and

(c) the right of the applicant or patentee 1o make amendment shall not be called in question except on the ground of fraud.

(3) In construing the specification as amended, reference may be made to the specification as originally accepted.

CHAPTER XI

RESTORATION OF LAPSED PATENTS

Applica- tions for restoration of lapsed patents.

60. (1) Where a patent has ceased to have effect by reason of failure to pay any renewal fee within the prescribed period or within that pe- riod as extended under sub-section (3) of section 53, the patentee or his legal representative, and where the patent was held bv two or more persons jointly, then, with the leave of the Controller, onp or more of them without joining the others, may, within one year from the date on which the patent ceased to have effect, make an application for the res- toration of the patent.

2 of 1911.

(2) The provisions of sub-section (1) shall also apply to patents granted before the commencement of this Act, subject to the modifica- tion that for the reference to the prescribed period or to sub-section (3) of section 53, there shall be substituted a reference to the period prescribed therefor under the Indian Patents and Designs Act. 1911 or to sub-section (2) of section 14 of that Act.

(3) An application under this section shall contain a statement, veri- fied in the prescribed manner, fully setting out the circumstances which led to the failure to pay the prescribed fee, and the Controller may re- quire from thr applicant such further evidence as he may think necessary,

Procedure for dispo- sal of ap. plications for res- toration of lapsed patents.

61. (/) If, after hearing the applicant in cases where the applicant so desires or the Controller thinks fit, the Controller is •prima facie satisfied that the failure to pay the renewal fee was unintentional and that there has been no undue delay in the making of the application, he shall advertise the application in the prescribed manner; and within the prescribed period any person interested may give notice to the Control- ler of opposition thereto on either or both of the following grounds, that is to say,—

(a) that the failure to pay the renewal fee was not uninten- tional; or

(b) that there has bc-en undue delay in the making of the appli- cation.

(2) If notice of opposition is given within the period aforesaid, the Controller shall notify the applicant, nnd shall give to him and to the opponent an opportunity to be heard before he decides the case.

(3) Tf no notice of opposition is given within the period aforesaid or if in the case of opposition, the decision of the Controller is in favour of the applicant, the Controller shall, upon payment of any unpaid rene- wal fee and such additional fee as may be prescribed, restore the patent and any patent of addition specified in the application which has ceased to have effect on the cesser of that patent.

(4) The Controller may, if be thinks fit as a condition of restoring the patent, require that an entry shall be made in the register of any document or matter which, under the provisions of this Act, has to be entered in the register but which has not been so entered.

Rights of patentees of lapsed patents which have been restored.

G2. (/) Where a patent is restored, the rights of the patentee shall be subject to such provisions as may be prescribed and to such other pro- visions as the Controller thinks fit to impose for the protection or com- pensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, the patented invention between the date whon the patent ceased to have effect and the date of the advertisement of the application for res- toration of the patent under this Chapter.

(2) No suit or other proceeding phall bp commenced or prosecuted in respect of an infringement of a patent committed between the date on which the patent ceased to have effect and the date of the advertise- ment of the application for restoration of the patent.

CHAPTER XII

SURRENDER AND REVOCATION OF PATENTS

G3. (7) A patentee may, at any time by giving notice in tho pres- Surrender of patents. cribed manner to the Controller, offer to surrender his patent.

(2) "Whore such an offer is made, the Controller shall advertise the offer in the prescribed manner, and also notify every person other than the patentee whose name appears in the register as having an Interest in the patent

(3) Any person interested may, within the prescribed period aftei such advertisement, give notice to the Controller of opposition to the surrender, and where any such notice is given the Controller shall notify the patentee.

(4) If the Controller is satisfied after hearing the patentee and any- opponent, if desirous of being heard, that the patent may properly be surrendered, he may accept the offer and, by order, revoke the patent.

Revocation of patents.

64. (1) Subject to the provisions contained in this Act, a patent, whe- ther granted before or after the commencement of this Act, may, on the petition of any person interested or of the Central Government or on a counter-claim in a suit for infringement of the patent, be revok- ed by the High Court on any of the following grounds, that is to say—

(a) that the invention, so far as claimed in any claim of the complete specification, was claimed in a valid claim of earlier prio- rity date contained in the complete specification of another patent granted in India;

(b) that the patent was granted on the application of a person not entitled under the provisions of this Act to apply therefor:

Sot 1911.

Provided that a patent granted under the Indian Patents and Designs Act, 1911 shall not be revoked on the ground that the applicant was the communicatee or the importer of the invention in India and therefore not entitled to make an application for the grant of a patent under this Act;

(c) that the patent was obtained wrongfully in contravention of the rights of the petitioner or any person under or through whom he claims;

(d) that the subject of any claim of the complete specification is not an invention within the meaning of this Act;

(e) that the invention so far as claimed in any claim of the complete specification is not new, having regard to what was pub- licly known or publicly used in India before the priority date of the claim or to what was published in India or elsewhere In any of the documents referred to in section 13;

: of I 9 i t.

Provided that in relation to patents granted under the Indian P a t e nt and Designs Act, 1911, this clause shall have effect as if the words "or elsewhere" had been omitted;

(f) that the invention so far as claimed in any claim of the com- plete specification is obvious or does not involve any inventive steo, having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of tliP claim:

2 of 1911

Provided that in relation to patents granted under the Indian Patents and Designs Act, 19U, this rlausp shall have effect as if the words "or elsewhere" had been omitted;

(0) that the invention, so far as claimed in any claim of th" complete specification, Is not useful;

(?i) that thu complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed, thai is to say, that the description of the method or the instructions lor the working of the invention as contained in the complete spi ciiication are not by themselves sufficient to en- able a person in India possessing average skill in, and average knowledge of, the art to which the invention relates, to work the invention, or that it doe3 not disclose the best method of performing it which was known to the applicant for the patent and for which he was entitled to claim protection;

(i) that the scope of any claim of the complete specification is not sufficiently and clearly defined or that any claim of the complete specification is not fairly based on the matter disclosed in the speci- fication;

(j) that the patent was obtained on a false suggestion or repre-

sentation;

(k) that the subject of any claim of the complete specification is not patenfable under this Act;

(I) that the invention so far as claimed in any claim of the complete specification was secretly used in India, otherwise than as mentioned in sub section (3), before the priority date of the claim;

(m) that the applicant for the patent hps failed to disclose to the Controller the information required by section 8 or has furnish- ed information which in any material particular was false to his knowledge;

(n) that the applicant contravened any direction for secrecy passed under section 35 or made or caused to h? made an applica- tion for the grant of a patent outside India in contravention of sec- tion 39;

(o) that leave to amend the complete specification under sec-

tion 57 or section 58 was obtained by fraud.

(,2) For the pnrposps of clauses (e) and (f) of sub-section ft),—

(a) no account shall be taken of secret use; and

(b) where the paient is for a process or for a product as made by a process described or claimed, the importation into India of the product made abroad by that process shall constitute knowledge or use in India of the invention on the date of the importation, ex- cept where such importation has been for the purpose of reasonable trial or experiment only.

(3) For the purpose of clause C) of sub-section (1), no account shalT b" taken of any use of the invention—

(a) for the purpose of reasonable trial or experiment only; or

(b) by the Government or by any person authorised by the Government or by a Government undertaking, in consequence of the applicant for the patent or any person from, whom he derives

title having communicated or disclosed thu invention directly or indirectly to the Government or person authorised as aioresaid or to the Government undertaking; or

(c) by any other person, in consequence of the applicant for the patent ui anv person from whom he derives title having com- municated or disclosed the invention, and without the consent or acquiescence ol the applicant or of any person from whom he de- rives title.

(4) Without prejudice to the provisions contained in sub-section (7), a patent may be revoked by the High Couit on the petition of the Cen- tral Government, if the High Court is satisfied that the patentee has without reasonable cause failed to comply with the request of the Cen- tral Government to make, use or exercise the patented invention for the purposes of Government within the meaning of section 99 upon rea- sonable terms.

(5) A notice of any petition lor revocation of a patent under this sec- tion shall be served on all persons appearing from the register to be proprietors of that patent or to have shares or interests therein and It shall not be necessary to •-jerve a notice on any other person.

33 of 1902.

Revocation of patent or amend- ment, of complete specifica- tion on direc- tions from Central Govern- ment in cases relating to atomic energy.

Revoca- tion oi patent in public interest.

REGISTER OF PATENTS

Register of patents and parti- culars to be entered therein.

(c) particulars of such other matters affecting the validity or proprietorship of patents as may be prescribed.

(2) No notice of any trust, whether express, implied or constructive, shall be entered in the register, and the Controller shall not be affected by any such notice.

(3) Subject to the superintendence and direction of the Central Gov- ernment, the register shall be kept under the control and management of the Controller.

(4) For the removal of doubts, it is hereby declared that the register of patents existing at the commencement of this Act shall be incorporated in, and form part of, the register under this Act.

Assign- ments, etc., not to be valid unless in writing sfad re- gistered.

68. An assignment of a patent or of a share in a patent, a mortgage, licence or the creation of any other interest in a patent shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of a document embodying all the terms and conditions governing their rights and obligations and the application for registration of such document is filed in the prescribed manner with the Controller within six months from the commencement of this Act or the execution of the document, whichever is later or within such further period not exceeding six months in the aggregate as the Controller on application made in the proscribed manner allows:

Provided that the document shall, when registered, have effect from the date of its execution.

Heglstrft- tion of assign- ments, trans- missions, etc.

69, (1) Where any person becomes entitled by assignment, transmis- sion or operation of law to a patent or to a share in a patent or becomes entitled as a mortgagee, licensee or otherwise to any other interest in a patent, he shall apply in writing in the prescribed manner to the Con- troller for the registration of his title or, as the case may be, of notice of his interest in the register.

(2) Without prejudice to the provisions of sub-section (2), an applica- tion for the registration of the title of any person becoming entitled by assignment to a patent or a share in a patent or becoming entitled by vir- tue of a mortgage, licence or other instrument to any other interest In a patent may be made in the prescribed manner by the assignor, mortgagor, licensor or other party to that instrument, as the case may be.

(3) Where an application is made under this section for the registra- tion of the title of any person the Controller shall, upon proof of title to his satisfaction,—

(a) where that person is entitled to a patent or a share in a patent, register him in the register as proprietor or co-proprietor of the patent, and enter in the register particulars of the instrument or event by which he derives title; or

(b) where that person is entitled to any other interest in the patent, enter in the register notice of his interest, with particulars of the instrument, if any, creating it:

Provided that if tbeie is any dispute between the parties whether the assignment, mortgage, licence, Lransmijsiun, operation of law or any other such transaction has valuily v -stcd in such person a title to the patent or any shaiv 01 interest ther in, the Controller may refuse to take any action under clause (a) or, as the case may be, under clause (b), until the rights of the parties have Leen determined by a competent court.

(4) There shall be supplied to the Controller in the prescribed manner for being filed in the patent office copies of all agreements, licences and other documents affecting the title to any patent or any licence thereunder authenticated in the prescribed manner and also such other documents as may be prescribed relevant to the subject-matt r:

Provided that in the case of a licence granted under a patent, the Con- troller shall, if so requested by the patentee or licensee, take steps for securing that the terms of the licence are not disclosed to any person ex- cept under the order of a court.

(5) Except for the purposes of an application under sub-section (1) or of an application to rectify the register, a document in respect of which no entry has been made in the register under sub-section (3) shall not be admitted by the Controller or by any court as evidence of the title of any person to a patent or to a share or interest therein unless the Controller or the court, for reasons to be recorded in writing, otherwise directs.

70. Subject to the provisions contained in this Act relating to co-own- ership of patents and subject also to any rights vested in any other per- son of which notice is entered in the register, the person or persons regis- tered as grantee or proprietor of a patent shall have power to assign, grant licences under, or otherwise deal with, the patent and to give effectual receipts for any consideration for any such assignment, licence or dealing:

Power of registered grantee or pro- prietor to deal with patent.

Provided that any equities in respect of the patent may be enforced in like manner as in respect of any other movable property.

71. (1) The High Court may, on the application of any person aggriev- ed—

(a) by the absence or omission from the register of any entry; or

Rectifica- tion 0* register by High Court.

(b) by any entry made In the register without sufficient cause; or

(c) by any entry wrongly remaining on the register; or

(d) by any error or defect in any entry in the register,

make such order for the making, variation or deletion, of any entry there- in as it may think fit.

(2) In any proceeding under this section the High Court may decide any question that may be necessary or expedient to decide in connection with the rectification of the register.

(3) Notice of any application to the High Court under this section shall be given in the prescribed manner to the Controller who ?hn11 be entitled to appear and be heard on the application, and shall appear if so directed by the court.

(4) Any order of the High Court under this section rectifying the re- gister shall direct that notice of the rectification shall be served upon the Controller in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.

Kegialer to be open lor inspec- tion.

72. (2) Subject to the provisions contained in this Act and any rules made thereunder, the register shall at all convenient times be open to inspection by the public; and certified copies, sealed with the seal of the patent office, of any entry in the register shall be given to any person requiring them on payment of the prescribed foe.

(2) The register shall be prima facie evidence of any matters required or authorised by or under this Act to be entered therein.

CHAPTER XIV

PATENT OFFICE AND ITS ESTABLISHMENT

Controller and other officers.

43 of 1958.

73. (1) The Controller General of Patents, Designs and Trade Marks appn nted under sub-section (2) of section 4 of the Trade and Merchandise Marks Act, 1958, shall be the Controller of Patents for the purposes of this Act.

(2) For the purposes of this Act, the Central Government may ftp- point as many examiners and other officers and with such designations as it thinks fit.

(3) Subject to the provisions of this Act, the officers appointed under sub-section (2) shall discharge under the superintendence and directions of the Controller such functions of the Controller under this Act as he may, from time to time by general or special order in writing, authorise them to discharge.

(4) Without prejudice to the generality of the provisions of sub-section (3), the Controller may, by order in writing and for reasons to be record- ed therein withdraw any matter pending before an officer appointed under sub-section (2) and deal with : uch matter himself either de novo or from the stage it was so withdrawn or transfer the same to another officer ap- pointed under sub-section (2) who may, subject to special directions In the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.

74. (2) For the purposes of this Act, there shall be an office which shall be known as the patent office.

Patent office and its branches.

2 of 1911.

(2) The patent office provided by the Central Government under the Indian Patents and Designs Act, 1911, shall be the patent office under this Act.

(3) The head office of the patent office shall be. at such place as the Central Government may specify, and for the purpose of facilitating the registration of patents there may be established, at such other places as the Central Government may think fit, branch offices of the patent office.

(4) There shall be a seal of the patent office.

75. All officers and employees of the patent office shall be incapable, during the period for which they hold their appointments, to acquire or take, directly or indirectly, except by inheritance or bequest, any right or interest in any patent issued by that office.

Restric- tion on employees of patent office as to right or interest in patents.

76. An officer or employee in the patent office shall not, except when required or authorised by this Act or under a direction in writing of the Central Government or the Controller or by order of a court,—

2 of 1911.

Officers and employees not to furnish informa- tion, etc. (a) furnish information on a matter which is being, or has been, dealt with under this Act or under the Indian Patents and Designs Act, 1911; or

(b) prepare or assist in the preparation of a document required

2 of 1911.

or permitted by or under this Act or under the Indian Patents and Designs Act, 1911, to be lodged in the patent office; or

(c) conduct a search in the records of the patent office.

CHAPTER XV

POWERS OP CONTROLLER GENERALLY

5 of 1908.

77. (1) Subject to any rules made in this behalf, the Controller in any proceedings before him under th's Act shall have the powerH of a civil court while trying a suit under the Code of Civil Procedure, ]908, in respect of the following matters, namely; —

Controller to have certain power,: ot a civil i_oiirt.

(a) summoning and enforcing the attendance of any person and

examining him on oath;

(b) requiring the discovery and pioduct'On of any document;

(c) receding evidence on affidavits;

(d) issuing commissions; for the exa^iinatjnn of witnesses or

documents;

(e) awauling r osts;

(f) reviewing his own decision on appliuatjnn made within the

pi escribed time and in the prescribed manner;

(g) setting aside an order passed ex parte on application made

within the prescribed time and in the prescribed manner;

(h) any other matter which may be prescribed.

(2) Any order for costs awarded by the Controller in exercise of the powers conferred upon him under sub-section (1) shall, be executable as a decree of a civil court.

78. (/) Without prejudice to the provisions contained in sections 57 nrd 59 as regards amendment of applications for patents or complete specifications and subject to the provisions of section 44, the Controller may, in accordance with the provisions of this section, correct any clerical errcr 'n any patent or in any specincaiion or oth^r dncument filed in pursuance of such application or in any application for a patent or any elpricil error in any matter which is entered in the register.

(2) A correction may be made in pursuance of this section either upon a request in writing made by any person interested and accompanied by the prescribed fee, or without such a request.

(3) Where the Controller proposes to make any such correction as aforesaid otherwise than in pursuance of a request made under this section, he shall give notice of the proposal to the patentee or the applicant for the patent, as the case mav be, and to any other person who appears to him to he concerned, and shall give them an opportunity to be heard before making the correction.

(4) Where a request is made under this section for the correction of tiny error in a patent or application for a patent or any document filed in pursuance of such an application, and it appears to the Controller that the correction would materially alter the meaning or scope of the document to which the request relates and ought not to be made without notice to persons affected thereby, ho shall require notice of the nature of the proposed correction to be advertised in the prescribed manner.

(5) Within the prescribed time after any such advertisement as aforesaid any person interested may give notice to the Controller of opposition to the request, and, where such notice of opposition is given, the Controller shall give notice thereof to' the person by whom the request was made, and shall give to him and to thp opponent an opportunity to be heard before hn decides the case.

79. Subject to any rules made in this behalf, in any pro'eeding under this Act before the Controller, evidence shall be given by affidavit in the absence of direciions by tho Controller to the contrary, but in any case in which the Controller thinks it right so to do, he may take oral evidence in lieu of, or in addition to, evidence by affidavit, or may allow any party to be cross-examined on the contents of his affidavit,

Evidence how to oe given and powers of Controller in respect thereof.

Exercise of discre- tionary powers by Controller.

80. Without prejudice to any provision contained in this Act requiring the Controller to hear any party to the proceedings thereunder or to give any such partv an opportunity to be heard, the Controller shall give to¹ any applicant for a patent, or for amendment of a specification (if within the prescribed time the applicant so requires) an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Controller by m- under this Act.

81. Where under the provisions of this Act or the rules made there- under the Controller may extend the time for doing any act, nothing in this Act shall be deemed to require him to give notice to or hear the party interested in opposing the extension, nor shall any appeal lie from any order of the Controller granting such extension.

Disposal by Control- ler of applica- tions for extension of time.

CHAPTER XVI

WORKING OF PATENTS, COMPULSORY LICENCES, LICENCES OF RIGHT AND

INVOCATION

82. In this Chapter, unless the context otherwise requires,—

(a) "patented article" includes any article made by a patented Definitions of "patent- ed artl- cits and

process; and

"patentee."

(b) "patentee" includes an exclusive licensee.

83. Without prejudice to the other provisions contained in this Ad in exercising the powers conferred by this Chapter, regard shall be ha< to the following general considerations, namely,—

General principles applicable to working of patented inven- tions.

(a) that patents are granted to encourage inventions and t< secure that the inventions are worked in India on a commercia scale and to the fullest extent that is reasonably practicable withou undue delay; and

(b) that they are not granted merely to enable patentees t<

enjoy a monopoly for the importation of the patented article.

Compul- sory licences.

84. (2) At any time after the expiration of three years from tht date of the sealing of a patent, any person interested may make ar application to the Controller alleging that the reasonable requirements of the public with respect to the patented invention have not been satis- fled or that the patented invention is not available to the public at a reasonable price and praying for the grant of a compulsory licence tc work the patented invention.

(2) An application under this section may be made by any person not- withstanding that he is already the holder of a licence under the patent and no person shall be estopped from alleging that the reasonable requirements of the public with respect to the patented invention are not satisfied or that the patented invention is not available to the public at a reasonable price by reason of any admission made by him, whether in such a licence or otherwise or by reason of his having accepted such a licence.

(3) Every application under sub-section (1) shall contain a statement setting out the nature of the applicant's interest together with such particulars as may be prescribed and the facts upon which the applica- tion is based.

(4) In considering the application filed Under this section the Con-

troller shall take into account the matters set out in section 85.

(5) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not available to the public at a reason- able price, may order the patentee to grant a licence upon such terms as he may deem fit.

(6) Where the Controller directs the patentee to grant a lidende he

may as incidental thereto exercise the powers set out in section 93!

85. In determining whether ot not to make ail order in pursuance ot ail application filed Under section 84, the Controller shall take into account,—

(i) the nature df the invention, the tinie which has elapsed dlnde the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the Invention;

Mattel to be takeh irittt accioiint Lri Utahtin compul- sory licence*, (ii) the ability of the applicant to Work the Invention to the

public advantage;

(Hi) the capacity of the applicant to undertake the risk in pro- viding capital and working the invention, if the application were granted,

but shall not bt: required to take into account matters subsequent to the •making of the application.

Endorse- ment of patent with the words "Licences of right".

80. (1) At any time after the expiration of three years from the date of the sealing of a patent, the Central Government may make an appli- cetion to the Controller for an order that the patent may be endorsed with the words "Licences of right" on the ground that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not available to the public at a reasonable price.

(2) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not available to the public at a reasonable price, may make an order that the patent be endorsed with the words "Licences of right".

(3) Where a patent of addition is in force, any application made under this section for an endorsement either of the original patent or of the patent ol addition shall be treated as an application for the endorsement of both patents, and where a patent of addition is granted In respect of a patent which is already endorsed under this section, the patent of addition shall also be so endorsed.

(4) All endorsements of patents made under this section shall be entered in the register and published in the Official Gazette and in such other manner as the Controller thinks desirable for bringing the endorse- ment to the notice of manufacturers.

87. (1) Notwithstanding anything contained in this Act,—

(a) every patent in force at the commencement of this Act in respect of inventions relating to—

(i) substances used or capable of being used as food or as medicine or drug;

Certain patents deemed to be endors- ed with the words "Licences of right".

(ii) the methods or processes for the manufacture or pro- duction of any such substance as is referred to in sub-clause (i);

(iii) the methods or processes for the manufacture or pro- duction of chemical substances (including alloys, optical glass, semi-conductors and inter-metallic compounds),

2 of 1911.

shall be deemed to be endorsed with the words "Licences of right" from the commencement of this Act or from the expiration of three years from the date of sealing of the patent under the Indian Patents and Designs Act, 1911, whichever is later; and

(b) every patent granted after the commencement of this Act in respect of any such invention as is referred to in section 5 shall be

deemed to be endorsed with the words "Licences of right" from the date of expiration of three years from the date of sealing of the patent.

(2) In respect of every patent which is deemed to be endorsed with the words "Licences of right" under this section, the provisions of section 88 shall apply.

88. (1) Where a patent has been endorsed with the words "Licences of right", any person who is Interested in working the patented invention in India may require the patentee to grant him a licence for the purpose on such terms as may be mutually agreed upon, notwithstanding that he is already the holder of a licence under the patent.

Effect of endorse^ ment of patent with th" words "Licence* "f right".

(2) If the parties are unable to agree on the terms of the licence, either of them may apply in the prescribed manner to the Controller to settle the terms thereof.

(3) The Controller shall, after giving notice to the parties and hearing them and after making such enquiry as he may deem fit, decide the terms on which the licence shall be granted by the patentee.

(4) The Controller may at any time before the terms of the licence are mutually agreed upon or decided by the Controller, on application made to him in this behalf by any person who has made any such requisition as is referred to in sub-section (7), permit him to work the patented invention on such terms as the Controller may, pending agreement between the parties or decision by the Controller, think fit to Impose.

(5) In the case of every patent in respect of an Invention referred to in sub-clause (i), or sub-clause (n), of clause (a) of sub-section (1) of section 87 and deemed to¹ be endorsed with the words "Licences of right" under clause (a) or clause (b) of that sub-section, the royalty and other remuneration reserved to the patentee under a licence granted to any person after such commencement shall in no case exceed four per cent, of the net px-factory sale price in bulk of the patented article (exclusive of taxes levied under any law for the time being in force and any commissions payable) determined in such manner as may be pres- cribed.

(

Revocation of patent* by the Contoller for non-

working.

89. (1) Where, in respect of a patent, a compulsory licence has been * granted or the endorsement "Licences of right" has boon made or la deem- ° ed to have been made, the Central Government or any person interested ( may, after the expiration of two years from the date of the order grant- f, ing the first compulsory licence or, as the case may be, the dat° of the ' grant of the first licence under section 88, apply to the Controller for im order revoking the patent on the ground that the reasonable requirements

of the public with respect to the patented invention have not been satis- fied or that the patented invention Is not available to the public at a rea- sonable price.

(2) Every application under sub-section (1) shall contain such parti- culars as may be prescribed and the facts upon which the application is hased, and, in the case of an application other than by the Central Gov- ernment, shall also set out the nature of the applicant's interest,

(3) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented Invention have not been satisfied or that the patented invention is not available to the public at a reasonable price, may make an order revoking the patent.

(4) Every application under sub-section (1) shall ordinarily be decid- ed within one year of Its being presented to the Controller.

90. For the purposes of sections 84, 86 and 89, the reasonable require- ments of the public shall be deemed not to have been satisfied—

When reasonable require- ments of the public deemed not satis- fied

(a) If, by reason of the default of the patentee to manufacture in India to an adequate extent and supply on reasonable terms the pat- ented article or a part of the patented article which is necessary for Its efficient working or if, by reason of the refusal of the patentee to (H*flnt a licence or licences on reasonable terms,—

(i) an existing trade or industry or the development thereof or the establishment of any new trade or industry in India or the trade or industry of any person or classes of persons trading or manufacturing In India is prejudiced; or

(H) the domand for the patented article is not being met to an adwquate extent or on reasonable terms from manufacture in India; or

(Hi) a market for the export of the patented article manu- factured in India Is not being supplied or developed; or

dv) the establishment or development of commercial acti- vities In India is prejudiced; or

(b) if, by reason of conditions imposed by the patentee (whether before or after the commencement of this Act) upon the grant of licences under the patent, or upon the purchase, hire or use of the patented article or process, the manufacture, use nr sale of materials flot protected by the patent, or the establishment or development of any trade or industry in India, Is prejudiced; or

(c) if the patented Invention Is not being worked in India on a "rjmmerclal scale to an adeauate extent or Is not being so worked to the fullest extent that Is reasonably practicable; or

(d) if the demand for the patented article in India is being met to * substantial extent by importation from abroad by—

(i\ the patentee or persons claiming under him; or

(ii) persons directly or indirectly purchasing from him; or

(in) other persons against whom the patentee is not taking or has not taken proceedings for infringement; or

(e) if the working of the patented invention in India on a com- mercial scale is being prevented or hindered by the importation from abroad of the patented article by the patentee or the other persona referred to in the preceding clause.

Power of Controller to adjourn applica- tions for compulsory licences, etc., in certain cases.

91. (I) Where an application under section 84, section 86 or section 89, as the case may be, is made on the ground mentioned in clause (c) of section 90 and the Controller is satisfied that the time which has elapsed since the sealing of the patent has for any reason been insufficient to en- able the Invention to be worked on a commercial scale to an adequate ex- tent or to enable the invention to be so worked to the fullest extent that Is reasonably practicable, he may, by order, adjourn the further hearing of the application for such period not exceeding twelve months in the aggregate as appears to him to be sufficient for the invention to be so worked:

Provided that in any case where the patentee establishes that the rea- son why a patented invention could not be worked as aforesaid before the date of the application was due to any State or Central Act or any rule or regulation made thereunder or any order of the Government imposed otherwise than by way of a condition for the working of the invention in India or for the disposal of the patented articles or of the articles made by the process or by the use of the patented plant, machinery, or appara- tus, then, the period of adjournment ordered under this sub-section shall be reckoned from the date on which the period during which the working of the invention was prevented by such Act, rule or regulation or order of Government as computed from the date of the application, expires.

(2) No adjournment under sub-section (1) shall be ordered unless the Controller is satisfied that the patentee has taken with promptitude ade- quate or reasonable steps to' start the working of the invention in India on a commercial scale and to an adequate extent.

Procedure for dealing with appli- cations under sec- tions 84, 86 and 89.

92. (1) Where the Controller is satisfied, upon consideration of an ap- plication under section 84, section 86 or section 89, that a prima facie case has been made out for the making of an order, he shall direct the appli- cant to serve copies of the application upon the patentee and any other person appearing from the register to be intere^d in the p3tent in res- pect of which the application is made, and shall advertise the application In the Official Gazette.

(2) The patentee or any other person desiring to oppose the applica- tion may, within such time as may b^ prescribed or within such further time as the Controller may on application (made either before or after the expiration of the prescribed time) allow, give to the Controller notice of opposition,

(3) Any such notice of opposition shall contain a statement setting out the grounds on which tho application is opposed.

(4) "Where any such notice of opposition is duly given, the Controlloi shall notify the applicant, and shall give to the applicant and the oppon- ent an opportunity to be heard before deciding the case.

Powers of Controller In granting compulsory licences.

93. (1) Where the Controller is satisfied on application made undei section 84 that the manufacture, use or sale of materials not protected by § the patent is prejudiced by reason of conditions imposed by the patentee upon the grant of licences under the patent, or upon the purchase, hire or use of the patented article or process, he may, subject to the provisions of that section, order the grant of licences under the patent to such cus- tomers of the applicant as he thinks fit as well as to the applicant.

(2) Where an application under section 84 ia made by a person being the holder of a licence under the patent, the Controller may, if he makes an order for the grant of a licence to the applicant, order the existing licence to be cancelled, or may, if he thinks fit, instead of making an order for the grant of a licence to the applicant, order the existing licence to be amended.

(3) Where on an application made under section 84, the Controller orders the grant of a licence, he may, for reasons to be recorded in writing, direct that the licence shall operate—

(a) to deprive the patentee of any right which he may have as patentee to make, use, exercise or vend the invention or to grant licences under the patent;

(b) to revoke all existing licences in respect of the invention.

(4) Where two or more patents are held by the same patentee and an applicant for a compulsory licence establishes that the reasonable require- ments of the public have not been satisfied with respect to some only of the said patents, then, if the Controller is satisfied that the applicant can- not efficiently or satisfactorily work the licence granted to him under those patents without infringing the other patents held by the patentee, he may, by order, direct the grant of a licence in respect of the other pat- ents also to enable the licensee to work the patent or patents in regard to which a licence is granted under section 84.

(5) Where the terms and conditions of a licence have been settled by the Controller, the licensee may, at any time after he has worked the in- vention on a commercial scale for a period of not less than twelve months, •nake an application to the Controller for the revision of the terms and conditions on the ground that the terms and conditions settled have prov- ed to be more onerous than originally expected and that in consequence thereof the licensee is unable to work the invention except at a loss:

Provided that no such application shall be entertained a second time.

94. The powers of the Controller upon an application made under sec- tion 84 shall be exercised with a view to securing the following general purposes, that is to say,—

General purposes for granting compul- sory li- cences.

(a) that patented Inventions are worked on a commercial scale in India without undue delay ind to the fullest extent that is reasonably practicable;

(b) that the interests of any person tor the tune being working or developing an invention in India under the protection of a patent are not unfairly prejudiced.

95. (!) In settling the terms and conditions of a licence under section 84, the Controller shall endeavour to secure—

Terma and con- ditions of compul- sory 11- cencei.

(i) that the royalty and other remuneration, if any, reserved to the patentee or other person beneficially entitled to the patent, is reasonable, having regard to the nature of the invention, the ex- penditure incurred by the patentee in making the invention or in developing it and Obtaining a patent and keeping it in force and other relevant factors;

(ii) that the patented invention is worked to the fullest ex" tent by the person to whom the licence is granted and with reason- able profit to him;

(Hi) that the patented articles are made available to the public at reasonable prices.

(2) No licence granted by the Controller shall authorise the licensee to import the patented article or an article or substance made by a patented process from abroad where such importation would, b ut for such authorisation, constitute an infringement of the rights of the patentee.

(3) Notwithstanding anything contained in sub-section (2), t he Central Government may, if in its opinion it is necessary so to do In the public interest, direct the Controller at any time to authorise any licensee in respect of a patent to import the patented article or an article or substance made by a patented process from abroad (subject to such conditions as it considers necessary to impose relat- ing among other matters to the royalty and other remuneration, If any, payable to the patentee, the quantum of import, the sale price of the imported article, and the period of importation), and thereupon the Controller shall give effect to the directions.

Licensing of related patentr 96. ( i) Notwithstanding anything contained in the other provi- sions of this Chapter, at any time after the sealing of a patent, any person who has the right to work any other patented invention either as patentee or as licensee thereof, exclusive or otherwise, may apply to the Controller for the grant of a licence of the first mentioned patent on the ground that he is prevented or hindered without such licence from working the other invention efficiently or to the best advantage possible.

(2) No order under sub-section (1) shall be made unless the Con- troller is satisfied—

(i) that the applicant is able and willing to grant, or pro- cure the grant to the patentee and his licensees if they so desire, of a licence in respect of the other invention on reasonable terms: and

(uj lhat the other invention has made a substantial contn- buLion to the establishment or development oi commercial or in- dustrial activities m India.

(J) When Llie Controller is satiiiied that the conditions mentioned in sub-see Lior. (1) have been established by the applicant, he may uialie an older on such termt, as he thinks lit granting a licence under tne llrsl mentioned patent and a similar order under the other patent if so requested by Uie proprietor ol me first mentioned patent or his licensee.

(4) The provisions of sections 92 and 110 shall apply to licences

granted under this section as they apply to licences granted unaer section 84.

9Y. (1) If the Central Government is satisfied in respect of any patent or class of patents in lorce that it is necessary or expedient in the public interest that compulsory licences should be granted at any time after the sealing thereof to work the invention or inven- tions, it may make a declaration to that effect in the Official Gazette, and thereupon the following provisions shall have effect, that is to say—

Special provision for com- pulsory licences on notifi- cation by Central Govern- ment

(i) the Controller shall on application made at any time after the notification by any person interested grant to the applicant a licence under the patent on such terms as he thinks fit;

(ii) in settling the terms of a licence granted under this sec- tion, the Controller shall endeavour to secure that the articles manufactured under the patent shall be available to the public at the lowest prices consistent with the patentees deriving a reason- able advantage from their patent rights.

(2) The provisions of sections 92, 93, 94 and 95 shall apply in re- lation to¹ the grant of licences under this section as they apply In relation to the grant of licences under section 84.

98. Any order for the grant of a licence under this Chapter shall operate as if it were a deed granting a licence executed by the patentee and all other necessary parties embodying the terms and conditions, If any, settled by the Controller.

Order for licence to ope- rate a* a deed between parties concern- ed.

CHAPTER XVII

USE OF INVENTIONS FOR PURPOSES OF GOVERNMENT AND ACQUISITION OF

INVENTIONS BY CENTRAL GOVERNMENT

99. (1) For the purposes of this Chapter, an invention is said to be used for the purposes of Government if it is made, used, exercised or vended for the purposes of the Central Government, a State Gov- ernment or a Government undertaking.

Meaning of use of in- vention for pur- poses of Govern- ment.

(2) Without prejudice to the generality of the provisions of sub- section (1),~

(a) the importation, by or on behalf of the Government, of any invention being a machine, apparatus or other article covered by a patent granted before the commencement of this Act, for the pur- pose merely of its own use; and

(b) the Importation, by or on behalf of the Government, of any invention being a medicine or drug covered by a patent granted before the commencement of this Act—

(i) for the purpose merely of its own use; or

(ii) for the purpose ol distribution in any dispensary, hos- pital or other medical institution maintained by or on behalf of the Government or in any other dispensary, hospital or other medical institution which the Central Government may, having regard to the public service which such other dispensary, hospi- tal or medical Institution renders, specify in this behalf by notification in the Official Gazette,

shall also be deemed, for the purposes of this Chapter, to be use of such invention for the purposes of Government.

(3) Nothing contained in this Chapter shall apply in respect of any such importation making or using of any machine, apparatus or other article or of any such using of any process or of any such importation using or distribution of any medicine or drug, as may be made by virtue of one or more of the conditions specified in section 47.

100. (1) Notwithstanding anything contained in this Act, at any time after an application for a patent has been filed at the patent office or a patent has been granted, the Central Government and any person authorised in writing by it, may use the invention for the purposes of Government in accordance with the provisions of this Chapter.

Power of Central Govern- ment to use in- ventioni for pur- poses of Govern- ment.

(2) Where an invention has, before the priority date of the rele- vant claim of the complete specification, been duly recorded in a docu- ment, or tested or tried, by or on behalf of the Government or a Government undertaking, otherwise than In consequence of the com- munication of the invention directly or indirectly by the patentee or by a person from whom he derives title, any use of the invention by the Central Government or any person authorised In writing by it for the purposes of Government may be made free of any royalty or other re- muneration to the patentee.

(3) If and so far as the Invention has not been so recorded or tried or tested as aforesaid, any use of the invention made by the Central Government or any person authorised by it under sub-section (I), at any time after the acceptance of the complete specification In res- pect of the patent or In consequence of any such communication as aforesaid, shall be made upon terms as may be agreed upon either before or after the use, between the Central Government or any person authorised under sub-section (1) and the patentee, or, as may in default of agreement be determined by the High Court on a reference under section 103:

Provided that in the case of any such use of any patent in respect of any medicine or drug or article of food the royalty and other re- muneration shall in no case exceed four per cent, of the net ex-factory sale price in bulk of the patented article (exclusive of taxes levied under any law for the time being in force and any commissions payable) deter- mined in such manner as may be prescribed.

(4) The authorisation by the Central Government in respect of an invention may be given under this section, either before or after the patent is granted and either before or after the acts in respect of which such authorisation is given or done, and may be given to any person, whether or not he is authorised directly or indirectly by the applicant or the patentee to make, use, exercise or vend the Invention or import the machine, apparatus or other article or medicine or drug covered by such patent.

(5) Where an invention has been used by or with the authority of the Central Government for the purposes of Government under this section, then, unless it appears to the Government that It would be contrary to the public interest so to do, the Government shall notify the patentee as soon as practicable of the fact and furnish him with such Information as to the extent of the use of the invention as he may, from time to time, reasonably require; and where the invention has been used for the purposes of a Government undertaking, the Central Government may call for such information as may be necessary for this purpose from such undertaking.

(6) The right to make, use, exercise and vend an Invention for the purposes of Government under sub-section (1) shall include the right to sell the goods which have been made in exercise of that right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to deal with the goods as if the Central Government or the person authorised under sub-section (I) were the patentee of the invention.

(7) Where in respect of a patent which has been the subject of an authorisation under this section, there is an exclusive licensee as Is referred to in sub-section (3) of section 101, or where such patent has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the Invention (includ- ing payments by way of minimum royalty), the notice directed to be given under sub-section (5) shall also be given to such exclusive licensee or assignor, as the case may be, and the reference to the patentee in sub-section (3) shall be deemed to include a reference to such assignor or exclusive licensee.

101. (1) In relation to any use of a patented invention, or an In- vention In respect of which an application for a patent is pending, made for the purposes of Government—

(a) by the Central Government or any person authorised by the Central Government under section 100; or

(b) by the patentee or applicant for the patent to the order made by the Central Government,

Rights of third parties in respefcft of use of invention for pur- poses of Govern- ment.

the provisions of any licence, assignment or agreement granted or made, whether before or after the commencement of this Act, bet- ween the patentee or applicant for the patent (or any person who derives title from him or from whom he derives title) and any person other than the Central Government shall be of no effect so far as those provisions—

(i) restrict or regulate the use for the purposes of Government of the invention, or of any model, document or information relating thereto, or

(ii) provide for the making of payments in respect of any use of the invention or of the model, document or information relating thereto for the purposes of Government (including payments by way of minimum royalty),

and the reproduction or publication of any model or document in con- nection with the said use for the purposes of Government shall not be deemed to be an infringement of any copyright subsisting in the model or document.

(2) Where the patent, or the right to apply for or obtain the patent, has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention (including payments by way of minimum royalty), then, in rela- tion to any use of the invention made for the purposes of Gov- ernment by the patentee to the order of the Central Government, sub-section (3) of section 100 shall have effect as if that use were made by virtue of an authority given under that section; and any use of the invention for the purposes of Government by virtue of sub-section (3) of that section shall have effect as if the reference to the patentee included a reference to the assignor of the patent, and any sum payable by virtue of that sub-section shall be divided between the patentee and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103.

(3) Where by virtue of sub-section (3) of section 100, payments are required to be made by the Central Government or persons authorised under sub-section (1) of that section in respect of the use of an invention for the purposes of Government and where in respect of such patent there is an exclusive licensee authorised under hl3 licence to use the invention for the purposes of Government, such sum shall be shared by the patentee and such licensee in such proportions, if any, as may be agreed upon between them or as may in default of agree- ment be determined by the High Court on a reference under section 103 to be just, having regard to any expenditure incurred by the licensee—

(a) in developing the said invention; or

(b) in making payments to the patentees other than royalties or other benefits determined by reference to the use of the invention including payments by way of minimum royalty in consideration of the licence.

102. (1) The Central Government may, if satisfied that it is necessary that an invention which is the subject of an application for a patent or a patent should be acquired from the applicant or the patentee for a public purpose, publish a notification to that effect in the Official Gazette, and thereupon the invention or patent and all rights in respect of the inven- tion or patent shall, by force of this section, stand transferred to and be vested in the Central Government.

Acquisi- tion of inventions and patents by the Central Govern- ment

(2) Notice of the acquisition shall bo given to the applicant, and, where a patent has been granted, to the patentee and other persons, if any, appearing in the register as having an interest in the patent.

(3) The Central Government shall pay to the applicant, or, as the case may be, the patentee and other persons appearing

Reference to High Court of disputes as to use for pur- poses of Govern- ment

103. (1) Any dispute as to the exercise by the Central Government or a person authorised by it of the powers conferred by section 100, or as to terms for the use of an invention for the purposes of Government there- under or as to the right of any person to receive any part of a payment made in pursuance of sub-section (3) of that section or as to the amount of compensation payable for the acquisition of an invention or a patent under section 102, may be referred to the High Court by either party to the dispute in such manner as may be prescribed by the rules of the High Court.

(2) In any proceedings under this section to which the Central Gov- ernment is a party, the Central Government may,—

(a) if the patentee is a party to the proceedings, petition by way of counter-claim for revocation of the patent on any ground upon which a patent may be revoked under section 64; and

(b) whether a patentee is or is not a party to the proceedings, put in issue the validity of the patent without petitioning for its revocation.

(3) If in such proceedings as aforesaid any question arises whether an invention has been recorded, tested or tried as is mentioned in section 100. and the disclosure of any document regarding the Invention, or of any evidence of the test or trial thereof, would, In the opinion of the Central Government, be prejudicial to the public Interest, the dis- closure may be made confidential^ to the advocate of the other party or to an independent expert mutually agreed upon.

(4) In determining under this section any dispute between the Central Government and any person as to terms for the use of an invention for the purposes of Government, the High Court shall have regard to anv

benefit or compensation which that person or any person from whom he derives title, may have received, or may be entitled to receive, directly or indirectly in respect of the use of the invention in question for the purposes of Government.

(5) In any proceedings under this section, the High Court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to an official referee, commissioner or an arbitra- tor on such terms as the High Court may direct, and references to the High Court in the foregoing provisions of this section shall be construed accordingly.

(6) Where the invention claimed in a patent was made by a person who at the time it was made was in the service of the Central Govern- ment or of a State Government or was an employee of a Government undertaking and the subject-matter of the invention is certified by the relevant Government or the principal officer of the Government under- taking to be connected with the work done in the course of the normal duties of the Government servant or employee of the Government under- taking, then, notwithstanding anything contained in this section, any dispute of the nature referred to in sub-section (1) relating to the inven- tion shall be disposed of by the Central Government conformably to the provisions of this section so far as may be applicable, but before doing so the Central Government shall give an opportunity to the patentee and such other parties as it considers have an interest in the matter to be heard.

CHAPTER XVIII

SUITS CONCERNING INFRINGEMENT OF PATENTS

Jurisdic- tion.

104. No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:

Provided that where a counter-claim for revocation of the patent Is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision.

47 of 1983.

Power of court to make declara- tion as to non- infringe- ment.

105. (1) Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963, any person may institute a suit for a declara- tion that the use by him of any process, or the m'aking, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a patent against the patentee or the holder of an exclusive licence under the patent, notwithstanding that no assertion to the contrary has been made by the patentee or the licensee, if it is shown—

(a) that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgment to the effect of the declaration claimed and has furnished him with full particulars in writing of the process or article in question; and

(b) that the patentee or licensee has refused or neglected to give such an acknowledgment.

(2) The costs of all parties in a suit for a declaration brought by vir- tue of this section shall, unless for special reasons the court thinks fit to order otherwise, be paid by the plaintiff.

(3) The validity of a claim of the specification of a patent shall not be called in question in a suit for a declaration brought by virtue of this section, and accordingly the making or refusal of such a declaration in the case of a patent shall not be deemed to imply that the patent is valid or invalid.

(4) A suit for a declaration may be brought by virtue of this section at any time after the date of advertisement of acceptance of the comp- lete specification of a patent, and references in this section to the patentee shall be construed accordingly.

106. (1) Where any person (whether entitled to or interested in a patent or an application for a patent or not) threatens any other person by circulars or advertisements or by communications, oral or in writing addressed to that or any other person, with proceedings for infringe- ment of a patent, any person aggrieved thereby may bring a suit against him praying for the following reliefs, that is to say—

(a) a declaration to the effect that the threats are unjustifiable;

Power of Court to grant relief in cases of groundless threats of Infringe- ment proceed- ings.

(b) an injunction against the continuance of the threats; and

(c) such damages, if any, as he has sustained thereby.

(2) Unless in such suit the defendant proves that the acts in respect of which the proceedings were threatened constitute or, if done, would constitute, an infringement of a patent or of rights arising from the pub- lication of a complete specification in respect of a claim of the specifica- tion not shown by the plaintiff to be invalid, the court may grant to the plaintiff all or any of the reliefs prayed for.

Explanation.—A mere notification of the existing of a patent does not

constitute a threat of proceeding within the meaning of this section.

107. (I) In any suit for infringement of a patent, every ground on which it may be revoked under section 64 shall be available as a ground for defence.

Defences, etc., in suits for infringe- ment.

(2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, impor- tation or distribution is in accordance with any one or more of the condi- tions specified in section 47.

108. The reliefs which a court may grant in any suit for infringement Include an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits.

Relief! in suits for in- fringe- ment.

Right of exclusive licensee to take proceed- ings against infringe- ment.

109. (1) The holder of an exclusive licence shall have the like right as the patentee to institute a suit in respect of any infringement of the patent committed after the date of the licence, and in awarding damages or an account of profits or granting any other relief in any such suit the court shall take into consideration any loss suffered or likely to be suffer- ed by the exclusive licensee as such or, as the case may be, the profits earned by means of the infringement so far as it constitutes an infringe- ment of the rights of the exclusive licensee as such.

(2) In any suit for infringement of a patent by the holder of an ex-

clusive licence under sub-section (1), the patentee shall, unless he has joined as a plaintiff in the suit, be added as a defendant, but a paten- tee so added as defendant shall not bo liable for any costs unless he enters an appearance and takes part in the proceedings.

110. Any person to whom a licence has been granted under section 84 shall be entitled to call upon the patentee to take proceedings to prevent any infringement of the patent, and, if the patentee refuses or neglects to do so within two months after being so called upon, the licensee may Institute proceedings for the infringement in his own name as though he were the patentee, making the patentee a defendant; but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

Right of licensee under section 84 to take proceed- ings against infringe- ment.

111. (1) In a suit for infringement of a patent, damages or an account of profits shall not be granted against the defendant who proves that at the date of the infringement he was not aware and had no reasonable grounds for believing that the patent existed.

Restric- tion on power of court to grant damages or account of profits for in- fringe- ment.

Explanation.—A person shall not be deemed to have been aware or to have had reasonable grounds for believing that a patent exists by reason only of the application to an article of the word "patent", "patent- ed" or any word or words expressing or implying that a patent has been obtained for the article, unless the number of the patent accompanies the word or words in question.

(2) In any suit for Infringement of a patent the court may, if it thinks fit, refuse to grant any damages or an account of profits in respect of any infringement committed after a failure to pay any renewal fee within the prescribed period and before any extension of that period.

(3) Where an amendment of a specification by way of disclaimer, cor- rection or explanation has been allowed under this Act after the publica- tion of the specification, no damages or account of profits shall be granted in any proceeding in respect of the use of the invention before the date of the decision allowing the amendment, unless the court is satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledge.

(4) Nothing in this section shall affect the power of the court to

grant an injunction in any suit for infringement of a patent

Restric- tion on power of court to grant injunction in certain cases.

112. If In proceedings for the infringement of a patent endorsed or deemed to be endorsed with the words "Licences of right" (otherwise than by the importation of the patented article from other countries) the infringing defendant is ready and willing to take a licence upon terms to be settled by the Controller as provided in section 88, no injunction shall be granted against him, and the amount if any recoverable against him by way of damages shall not exceed double the amount which would have been recoverable against him as licensee if such a licence had been granted before the earliest infringement.

113. (1) If in any proceedings before a High Court for the revocation of a patent under section 64 the validity of any claim of a specification is contested and that claim is found by the court to be valid, the Court may certify that the validity of that claim was contested in those proceed- ings and was upheld.

Certi- ficate of validity of speci- fication and costs of subse- quent suits for infringe- ment thereof.

(2) Where any such certificate has been granted, then, if in any subse- quent suit before a court for infringement of that claim of the patent or in any subsequent proceeding for revocation of the patent in so far as It relates to that claim, the patentee or other person relying on the validity of the claim obtains a final order or judgment in his favour, he shall be entitled to an order for the payment of his full costs, charges and ex- penses of and incidental to any such suit or proceeding properly incurred so far as they concern the claim in respect of which the certificate was granted, unless the court trying the suit or proceeding otherwise directs:

Provided that the costs as specified In this sub-section shall not be ordered when the party disputing the validity of the claim satisfies the court that he was not aware of the grant of the certificate when he raised the dispute and withdrew forthwith such defence when he became aware of such a certificate.

(3) Nothing contained in this section shall be construed as authoris- ing courts hearing appeals from decrees or orders in suits for Infringe- ment or petitions for revocation to pass orders for costs on the scale refer- red to therein.

114 (1) If In proceedings for infringement of a patent it Is found that any claim of the specification, being a claim In respect of which infringe- ment is alleged, is valid, but that any other claim is invalid, the court may grant relief in respect of any valid claim which is infringed:

Belief for infringe- ment oi partially valid specifica- tion.

Provided that the court shall not grant relief except by way ot Injun-

ction save in the circumstances mentioned in sub-section (2).

(2) Where the plaintiff proves that the invalid claim was framed in good faith and with reasonable skill and knowledge, the court shall grant relief in respect of any valid claim which is infringed subject to the discretion of the court as to costs and as to the date from which damages or an account of profits should be reckoned, and in exercising such dis- cretion the court may take into consideration the conduct of the parties in inserting such invalid claims in the specification or permitting them to remain there.

(c) to prohibit the purchaser, lessee or licensee from using c to restrict in any manner or to any extent the right of the pit: chaser, lessee or licensee to use any process other than the pal ented process,

and any such condition shall be void.

(2) A condition of the nature referred to in clause (a) or clause (h or clause (c) of sub-section (1) shall not cease to be a condition fallin, within that sub-section merely by reason of the fact that the agreemen containing it has been entered into separately, whether before or after tin contract relating to the sale, lease or licence of the patented article o; process.

(3) In proceedings against any person for the infringement of 1 patent, it shall be a defence to prove that at the time of the infringemen there was in force a contract relating to the patent and containing ,q con dition declared unlawful by this section:

Provided that this sub-section shall not apply if the iiialiiiif" <•-, voi :

party to the contract and proves to the satisfaction of the. court that th< restrictive condition was inserted in the contract without his knowledge and consent, express or implied.

(4) Nothing in ibis section shall—

(a) affect a condition in a contract by which a person is prohi- bited from selling goods other 1han those of a particular person;

(b) validate a contract which, but for this section, would be In- valid;

(c) affect a Condition in a contract for the lease of, or lir-ence to use, a patented article, bv which the lessor or licensor reserves to him- self or his nominee the right to supply such new parts of the patented article as may be required or to put or keep it in repair,

(5) The provisions of this section shsll also apply to contracts made before the commencement of this Act if, and in so far as, any restrictive condlt;ons declared unlawful by this section continue in force after the expiration of one year from such commencement.

Determi- nation oi certain contracts.

Fees.

grant of patents under this Act, such fees as may be prescribed by the Central Government.

(2) Where a fee is payable in respect of the doing of an act by the Controller, the Controller shall not do that act until the fee has been paid.

(3) Where a fee is payable in respect of the filing of a document at the patent office, the document shall be deemed not to have been filed at the office until the fee has been paid.

(4) Where a principal patent is granted later than two years from the date of filing of the complete specification, the fees which have be- come due in the meantime may be paid within a term of three months from the date of the recording of the patent in the register,

143. Subject to the provisions of Chapter VII, an application for a patent, and any specification filed in pursuance thereof, shall not, except with the consent of the applicant, be published by the Controller or bp open to public inspection at any time before the date of advertisement of acceptance of the application in pursuance of section 23.

ltestrio-

ttoIU

upon

publi-

cation of

•pacifica-

tions.

Reports

of

examiner*

to ba con-

fidential.

144. The reports of examiners to the Controller under this Act shall not bft open to public inspection or be published by the Controller; and BUch reports shall not be liable to production or Inspection in any legal proceeding unless the court certifies that the production or inspection is desirable in the interests of justice, and ought to be allowed.

i

145. The Controller shall issue periodically a publication of patented inventions containing such information as the Central Government may direct.

Publica-

tion of

patented

Inven-

tions.

Power oi

controller

to call

for infor-

mation

from

potentees.

148. (1) The Controller may, at any time during the continuance of thfc patent, by notice in writing, require a patentee or a licensee, exclu- sive or otherwise, to furnish to him within two months from the date of such notice or within such further time as the Controller may allow, such information or such periodical statements as to the extent to which the patented invention has been commercially worked in India as may be specified In the notice.

(2) Without prejudice to the provisions of sub-section ( 0, every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be presci-ibed statements as to the extent to which the patented invention has been worked on a commercial scale In India.

(3) The Controller may publish the information received by him under sub-section (1) or sub-section (2) in such manner as may bo prescribed.

141, (I) A certificate purporting tn be signed by the Controller as to

anv entry, matter or thing which he is authorised by this Act or any Ev44"fece of entries, document^

rules made thereunder to make or do, shall be prima facie evidence of tn" "fttry having been mad" and of th" contents thereof and of the m*t- tpy or thing having been dona "r emitted to be done.

(2) A copy of any entry in any register or of any document kept tn the patent office or of any patent, or an extract from any such register or document, purporting to be certified by the Controller and sealed with the seal of the patent office shall be admitted in evidence in all courts, and in all proceedings, without further proof or production ot the original.

(3) The Controller or any other officer of the patent office shall not, in any legal proceedings to which he is not a party, be compellable to produce the register or any other document in his custody, the contents of which can be proved by the production of a certified copy Issued under this Act or to appear as a witness to prove the matters therein recorded unless by order of the court made for special causes.

iJevlftf*

tiov by

intuit,

lunatic,

etc.

148. (1) If any person is, by reason of minority, lunacy or other dis- ability, incapable of making any statement or doing anything required or permitted by or under this Act, the lawful guardian, committee or manager (if any) of the person subject to the disability, or if there be none, any person appointed by any court possessing jurisdiction in res- pect of his property, may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability.

(2) An appointment may be made by the court for the purpose* of this section upon the petition of any person acting on behalf of the per- son subject to the disability or of any other person interested in the making of the statement or the doing of the thing.

149. Any notice required or authorised to be given by or under this Act, and any application or other document so authorised or required to be made or filed, may be given, made or filed by post.

Service

of notices,

etc., by

post.

Security

for ctsti.

150. If any party by whom notice of any opposition is given under this Act or by whom application is made to the Controller for the grant of a licence under a patent neither resides nor carries on business in India, the Controller may require him to give security for the costs of the proceedings, and in default of such security being given may treat the opposition or application a& abandoned.

151. (1) Every order of the High Court on a petition for revocation, including orders granting certificates of validity of any claim, shall bo transmitted by the High Court to the Controller who shall cause an entry thereof and reference thereto to be made in the register.

Traainaii-

siou of

ordvri •!

courts t*

Controller.

(2) Where in any suit for infringement of a patent or in any suit under section 106 the validity of any claim or a specification is contest- ed and that claim is found by the court to be valid or not valid, as the case may be, the court shall transmit a copy of its judgment and decree to the Controller who shall on receipt thereof cause an entry in rela- tion to such proceeding to be made in the prescribed manner in a sup- plemental record.

(3) The provisions of sub-sections (1) and (2) shall also apply to the court to which appeals are preferred against decisions of the courts re- ferred to in those sub-sec lions.

152. Copies of all such specifications, drawings and amendments left at the patent office as become open to public inspection under the pro- visions of this Act, shall be transmitted, as soon as may be, after the printed copies thereof are available, to such authorities as the Central Government may appoint in this behalf, and shall be open to the inspec- tion of any person at all reasonable times at places to be specified by those authorities and with the approval of the Central Government.

Transmis- sion of copies oi specifica- tions, etc., and inspec- tion thereof.

Informa- tion relat- ing to patents.

153. A person making a request to the Controller in the prescribed manner for information relating to any such matters as may be pres- cribed as respects any pate tit specified in the request or as respects any application for a patent so specified shall be entitled, subject to tha payment of the prescribed fee, to have information supplied to him ac- cordingly,

Loss or ijettrur.tlon oJ! pe+ents.

154. If a patent is lost or destroyed, or its non-production is account- ed for to the satisfaction of the Controller, the Controller may at any time, on application made in the prescribed manner and on payment of the prescribed fee, cause a duplicate thereof to be sealed and delivered to the applicant.

155. The Central Government shall cause to be placed before both Houses of Parliament once a year a report respecting the execution ol this Act by or under the Controller.

Reports of Controller to bo placed before Parlia- ment.

156. Subject to the other provisions contained in this Act, a patent shall have to all intents the like effect as against Government as it haa against any person.

Patent to bind Goyern- ment.

157. Nothing in this Act shall affect the power of the Government or of any person deriving title directly or indirectly from the Govern- ment to sell or use any articles forfeited under any law for the time being in force.

Right of Govern- ment to sell or use for- feited articles.

158. The High Court may make rules consistent with this Act "s to the conduct and procedure in respect of all proceedings before it under this Act.

159. (1) The Central Government may, by notification in the Official

Gazette, make rules for carrying out the purposes of this Act.

Power of High Courts to make rules. Power of Central Govern- ment to make ruler

(2) Without prejudice to the generality of the foregoing power, the Central Government may make rules to provide for all or any of the following matters, namely: —

(i) the form and manner in which any application for a patent, any specifications or drawings and any other application or document may be filed in the patent office;

(ii) the time within which any act or thing may be done under this Act, including the manner in which and the time within which any matter may be advertised under this Act;

(Hi) the fees which may be payable under this Act and the man- ner of payment of such fees;

(iv) the matters in respect of which the examiner may make a report to the Controller;

(u) the form of request for the sealing of a patent;

(vi) the form and manner in which and the time within which any notice may bo given under this Act;

(vii) the provisions which may bo inserted in an order for resto- ration of a patent for the protection of persons who may have avail- ed themselves of the subject-matter of the patent after the patent had ceased;

(viii) the establishment of branch offices of the patent office and the regulation generally of the business of the patent office, Includ- ing its branch offices;

(ix) the maintenance of the register of patents and the matters to be entered therein;

(x) the matters in respect of which the Controller shall have powers of a civil court;

(xi) the time when and the manner in which the register and any other document open to inspection may be inspected under this Act;

(xii) the qualifications of, and the preparation of a roll of, scien- tific advisers for the purpose of section 115;

(xhi) the manner in which any compensation for acquisition by Government of an invention may be paid;

(xiv) the manner in which the register of patent agents may be maintained; the conduct of qualifying examinations for patent agents; and matters connected with their practice and conduct, in- cluding the taking of disciplinary proceedings against patent agents for misconduct;

(xv) the regulation of the making, printing, publishing and sel- ling of Indexes to, and abridgments of, specifications and other docu- ments in the patent office; and the inspection of Indexes and abridg- ments and other documents;

(xvi) any other matter which has to be or may be prescribed.

(3) The power to make rules under this section shall be subject to ondition of the rules being made after previous publication.

Rules to be placed before Parliament 160. Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while It is in ses- sion for a total period of thirty days which may be comprised in one session or in two successive sessions, and, if before the expir of the ses- sion in which it is so laid or in the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be;

so, however, thai any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

101. (1) Where, as a result of action taken by the Controller under

20 of 1848.

33 of llttt£.

2 of 1811.

Special provisions with respect to certain applica- tions deemed to have been refused under Act 2 of 1911.

section 12 of the Atomic Energy Act, 1948, or under section 20 of the Atomic Energy Act, 1962, an application for a patent made before the commencement of this Act could not be accepted within the time speci- fied for the purpose in the Indian Patents and Designs Act, 1911 (here- after in this section referred to as the repealed Act), and, consequently, was deemed to have been refused by reason of sub-section (4) of sec- tion 5 of the repealed Act, the application may, if the applicant or, if he is dead his legal representative makes a request in that behalf to the Controller in the prescribed manner within three months from the commencement of this Act, be revived and shall be disposed of as if it were an application pending at the commencement of this Act to which the provisions of this Act apply by reason of sub-section (3) of section 162.

(2) The Controller may, before proceeding to act upon any such re- quest as is referred to in sub-section (1), refer the matter to the Central Government for directions as to whether the invention is one relating to atomic energy and shall act in conformity with the directions issued by it.

(3) Where in pursuance of any such application as is referred to in sub-section (1) a patent is granted, the rights of the patentee shall be subject to such conditions as the Controller thinks fit to impose for the protection or compensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, the patented invention before the date of advertise- ment of the acceptance of the complete specification.

(4) A patent granted in pursuance of any such application as is re- ferred to in sub-sectiop (1) shall be dated as of the date on which the request for reviving such application was made under sub-section (1).

162. (2) The Indian Patents and Designs Act, 1911, in BO far aa it relates to patents, is hereby repealed, that is to say, the said Act shall be amended in the manner specified in the Schedule.

(2) Notwithstanding the repeal of the Indian Patents and Designs Repeal of Act 2 of 1911 in so far as it relates to patents and savings. Act, 1911, in so far as it relates to patents—

(a) the provisions of section 21A of that Act and of any rules

made thereunder shall continue to apply in relation to any patent granted before the commencement of this Act in pursuance of that section, and

(b) the renewal fee in respect of a patent granted under that

Act shall be as fixed thereunder.

(3) Save as otherwise provided in sub-section (2), the provisions of this Act shall apply to any application for a patent pending at the commencement of this Act and to any proceedings consequent thereon and to any patent granted in pursuance thereof.

16 "f 1817.

(4) The mention of particular matters in this section shall not pre- judice the general application of the General Clauses Act, 1897, with respect to repeals.

(5) Notwithstanding anything contained in this Act, any suit for infringement of a patent or any proceeding for revocation of a patent, pending in any court at the commencement of this Act, may be continued and disposed of, as if this Act had not been passed.

2 of 1911

Amend- ment ot Act 43 of 1058.

163. In sub-section (I) of section 4 of the Trade and Merchandise Marks Act, 1958, the words and figures "and the Controller of Patents and Designs for the purposes of the Indian Patents and Designs Act, 1911" shall be omitted.

THE SCHEDULE

[See section 162]

AMENDMENTS TO THE INDIAN PATENTS AND DESIGNS ACT, 1911

1. Long title—Omit "Inventions and".

2. Preamble—Omit "inventions and".

3. Section 1—In sub-section (1) omit "Indian Patents and",

4. Section 2—

(a) omit clause (1);

(b) in clause (2) omit "(as respects designs)";

(c) for clause (3), substitute—

43 of 1958.

'(3) "controller" means the Controller General of Patents, Designs and Trade Marks appointed under sub-section (1) of section 4 of the Trade and Merchandise Marks Act, 1958;';

(d) in clause (5) for "trade mark as defined in section 478", substitute "trade mark at denned in clause (v) of sub-section (7) of section 2 of the Trade av 1 Merchandise Marks Act, 1958";

43 of 1958.

(e) omit clause (6);

(f) in clause 7, after sub-clause (ee) insert,—

"(f) in relation to the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu, the High Court at Bombay;

(<7) in relation to the Union territory of Pondicherry, the High Court at Madras.";

(y) o m it clauses (8), (10) a nd (11);

(h) for clause (22), substitute—

'(12) "patent office" means the patent office referred to in section 74 of the Patents Act, 1970.'.

5. Omit Part I.

6. For section 51B, substitute—

Designs to bind Govern- "51B. A registered design shall have to all intents the like effec as against Government as it has against any person and the provl sions of Chapter XVII of the Patents Act, 1070, shall apply to regls tered designs as they apply to patents.",

7. In section 54, for "The provision a of this Act", substitute "Tti" provisions of the Patents Act, 1970".

8. Omit sections 55 and 56.

9. Section 57—For sub-section (1), substitute: —

" (1) There shall be paid in respect of the registration of designs and applications therefor and in respect of other matters relating to designs under this Act such fees as may be prescribed by trie Ontra] Government.".

10. Omit section 59A.

11. Section 61—Omit sub-section (1).

12. For section 62, substitute—

"62. The Controller may, on request in writing accompanied by the prescribed fee, correct any clerical error in the representation of a design or in the name or address of the proprietor of any design or in any other matter which is entered upon the register of designs.".

Power of Controller to correct clerical errors.

13. Section 63—

(a) in sub-section (1), omit "to a patent or" and "patent or";

(b) in sub-section (2), omit "patent or" and for "patents or designs, as the case nmy be,", substitute "designs,";

(c) In sub-section (3), omit "patent or" wherever that expression occurs;

(d) in sub-section (4), omit "to a patent or".

14. Section 64—

(a) in sub-section (1), omit "patents or" and omit the word "either" wherever It occurs;

(b) in sub-section (5), omit clause (a),

15. Omit Section 66.

16. Section 67—Omit "for a patent, or for amendment of an application or of a specification, or".

17. Section 69—In sub-section (1), omit "to grant a patent for an in- vention or".

18. Section 71A—Omit "or from patents, specifications and other,".

19. Omit section 72.

20. Omit sections 74A and 75.

21. Section 76—

(a) in sub-section (I), omit "other";

(b) in BUb-section (2), in clause (c), omit "opponent".

22. Section 77—

(a) in sub-section (1) —

(i) in clauses (c) and (d), omit "specifications";

(ii) for clause (e), substitute—

"(e) providing for the inspection of documents in tin patent office and for the manner in which they may be pub- lished;";

(Hi) omit clause (eee) ;

(b) omit sub-section (2A).

23. Omit section 78.

24. For section 78A, substitute—

"78A. (1) Any person who has applied for protection for any design in the United Kingdom or his legal representative or assignee shall, either alone or jointly with any other person, be entitled to claim that the registration of the said design under this Act shall be In priority to other applicants and shall have the same date as the date of the application In the United Kingdom:

Provided that—

Rceipro* eal arrange- ment with United Kingdom and other Common- wealth countries.

(a) the application is made within six months from the application for protection in the United Kingdom; and

(b) nothing in this section shall entitle the proprietor of the design to recover damages for infringements happening prior tc the actual date on which the design is registered in India.

(2) The registration of a design shall not be invalidated by reason only of the exhibition or use of, or the publication of a description or representation of, the design in India during the period specified in this section as that within which the application may be made.

(3) The application for the registration of a design under this section must be made in the same manner as an ordinary application tinder this Act.

(4) Where it is made to appear to the Central Government that the legislature of any such Commonwealth country as may be notified by the Central Government in this behalf has made satisfactory pro- vision for the protection of designs registered in India, the Central Government may, by notification in the Official Gazette, direct that the provisions of this section, with such variations or additions, if any, as may be set out'in such notification, shall apply for the protec- tion of designs registered in that Commonwealth country.".

25. Omit sections 78B, 78C, 78D and 78E.

26. Omit the Schedule.

N. D. P. NAMBOODIRIPAD, Joint Secy, to the Govt. of India-

PRINTED BY THE GENERAL MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD,

NEW DELHI ANT PUBLISHED BY THE MANAGES OF PUBLICATIONS. DELHI. 1970