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Effect of restoring a withdrawn application under section 110 of the Principal Act.
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27.— The Principal Act is amended by inserting the following section after section 110:
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“Effect of restoring a withdrawn application under section 110.
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110A.— (1) Where—
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(a) the Controller is requested to correct an error or mistake in a withdrawal of an application for a patent, and
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(b) an application for a patent has been restored in accordance with that request,
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the following provisions apply:
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(i) anything done under or in relation to the application during the period between the application being withdrawn and its restoration shall be treated as valid;
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(ii) where the Controller has published notice of the request referred to in section 110(2A), anything done during the period referred to in subparagraph (i) which would have constituted an infringement of the rights conferred by publication of the application if the application had not been withdrawn shall be treated as an infringement of those rights if it was a continuation or repetition of an earlier act infringing those rights;
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(iii) where the Controller has published notice of the request referred to in section 110(2A) and, after the withdrawal of the application and before publication of the notice, a person—
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(I) began in good faith to do an act which would have constituted an infringement of the rights conferred by publication of the application if the withdrawal had not taken place, or
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(II) made, in good faith, effective and serious preparations to do such an act,
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the person shall have the rights conferred by subsection (2).
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(2) The person referred to in subsection (1)(iii) shall have the right to continue to do the act concerned or, as the case may be, to do that act, notwithstanding the restoration of the application and the grant of the patent.
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(3) Subsection (2) does not extend to granting a licence to any person to do an act referred to in subsection (1)(iii).
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(4) If the act referred to in subsection (1)(iii) was done, or the preparations were made to do it, in the course of a business, the person entitled to the right conferred by subsection (2) may—
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(a) authorise that act to be done by any partner of that person for the time being in that business, and
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(b) assign the right, or transmit that right on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or preparations had been made to do it.
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(5) Where a product is disposed of by any person to another person in exercise of a right conferred by subsection (2) or (4) that other person and any person claiming through that other person shall be entitled to deal with the product in the same way as if it had been disposed of by the applicant.”.
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