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Effect of filing application for European patent (section 120 of Principal Act).
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31.— Section 120 of the Principal Act is amended—
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(a) by substituting the following for subsection (4):
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“(4) Subsections (1), (2) and (3) shall cease to apply to an application for a European patent designating the State, except as provided for in subsection (4A), if—
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(a) the application is refused or withdrawn or deemed to be withdrawn, or
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(b) the designation of the State in the application is withdrawn or deemed to be withdrawn,
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but shall apply again if the rights of the applicant are re-established under the European Patent Convention, as from the re-establishment of those rights.”,
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(b) by inserting the following after subsection (4):
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“(4A) (a) The occurrence of any of the events referred to in subsection (4)(a) or (b) shall not affect the continued operation of section 11(3) in relation to matter contained in an application for a European patent designating the State which by virtue of that provision has become part of the state of the art as regards other inventions.
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(b) The occurrence of any of the events mentioned in subsection (4)(b) shall not prevent matter contained in the application for a European patent designating the State becoming part of the state of the art by virtue of section 11(3) as regards other inventions, where the event occurs before the publication of that application.
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(c) Paragraph (b) shall apply only to European patents and European patent applications filed after the coming into operation of that paragraph.”,
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(c) by substituting the following for subsection (5):
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“(5) Where between the cesser, by virtue of subsection (4), of subsections (1), (2) and (3) as regards an application for a European patent and the re-establishment of the rights of the applicant, a person begins in good faith to do an act which would, apart from section 77, constitute an infringement of the rights conferred by publication of the application if subsections (1), (2) and (3) then applied, or makes in good faith effective and serious preparations to do such an act, subsections (5A) to (5D) shall apply.
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(5A) The person referred to in subsection (5) shall have the right to continue to do the act concerned or, as the case may be, to do that act, notwithstanding subsections (1) to (3) applying again and notwithstanding the grant of the patent.
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(5B) Subsection (5A) does not extend to granting a licence to any person to do an act referred to in subsection (5).
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(5C) If the act referred to in subsection (5) 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 (5A) 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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(5D) Where a product is disposed of by any person to another person in exercise of a right conferred by subsection (5A) or (5C) 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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and
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(d) by substituting the following for subsection (7):
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“(7) (a) An application for a European patent may be filed at the Office. The Office shall forward an application to the European Patent Office within the time specified in the Implementing Regulations to the European Patent Convention.
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(b) This provision shall not apply in respect of an application which is a European divisional application under the European Patent Convention.”.
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