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Burden of proof.
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46.—(1) If the subject-matter of a patent or patent application is a process for obtaining a new product, the same product when produced by a person other than the proprietor or applicant, as the case may be, shall, in the absence of sufficient evidence to raise an issue as to whether the product was obtained by that or another process, be deemed to have been obtained by the process which is such subject-matter.
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(2) In considering whether a party has discharged the burden imposed upon him by this section, the Court shall have regard to the interest of the defendant in the protection of his manufacturing and business secrets, and for that purpose the Court may, if it thinks fit, hear or receive evidence on behalf of the defendant in the absence of any other party to the proceedings.
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(3) (a) Any party to infringement proceedings may, in the absence of every other party to the proceedings, apply to the Court for an order under this subsection.
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(b) If in considering an application for an order under this subsection the Court is satisfied that—
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(i) the applicant is in possession of a manufacturing or commercial secret, and
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(ii) the secret (evidence of which shall be given in the absence of any party to the proceedings other than the applicant) is such as would enable the applicant to discharge the burden imposed by this section, and
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(iii) in the circumstances of the case to require the disclosure (otherwise than on the application) of the secret would be unreasonable, the Court shall allow the application.
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(c) Where the Court makes an order under this subsection, the burden imposed under this section shall, in relation to the relevant infringement proceedings, be regarded as having been discharged by the applicant.
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