|
|
Reinstatement of applications.
|
9.— Part II of the Principal Act is amended by inserting the following sections after section 35 but in Chapter IV of that Part:
|
|
| |
“Reinstatement of applications.
|
|
| |
35A.— (1) This section shall not apply to a patent application which has lapsed by reason of the failure to pay any renewal fee and section 35(3) shall continue to apply to any such application.
|
|
| |
(2) Where an application for a patent is refused or is treated as having been withdrawn, as a direct consequence of a failure by the applicant to comply with a requirement of this Act or rules made thereunder within a period which is prescribed or specified by the Controller, subject to subsection (3), the Controller shall reinstate the application only if—
|
|
| |
(a) the applicant requests the Controller to do so,
|
|
| |
(b) the request complies with the prescribed requirements, and
|
|
| |
(c) the Controller is satisfied that the said failure to comply occurred despite reasonable care having been taken to so comply.
|
|
| |
(3) The Controller shall not reinstate the application if the period referred to in subsection (2) is prescribed or specified by the Controller—
|
|
| |
(a) in relation to any proceedings before the Controller pursuant to Part VIII,
|
|
| |
(b) for the purposes of section 25(1), or
|
|
| |
(c) for the purposes of a request under this section or section 118A.
|
|
| |
(4) Where the application for a patent was made by 2 or more persons jointly, a request under subsection (2) may, with the leave of the Controller, be made by one or more of them without joining the others.
|
|
| |
(5) Where the application has been published under section 28 and it appears to the Controller that reasonable care was taken to comply with the requirement within the prescribed period or, as the case may be, the period specified by the Controller, the Controller shall publish notice of a request under subsection (2) in the Journal and within the prescribed period any person may give notice to the Controller of opposition thereto.
|
|
| |
(6) If notice of opposition is duly given under this section, the Controller shall notify the applicant and determine the question.
|
|
| |
(7) Where an application is reinstated under this section the applicant shall comply with the requirement referred to in subsection (2) within the further period specified by the Controller in making the order to reinstate the application, which further period shall not be less than 2 months.
|
|
| |
(8) Where the applicant fails to comply with subsection (7) the application shall be treated as having been withdrawn on the expiration of the period referred to in that subsection.
|
|
| |
Effect of reinstatement.
|
|
| |
35B.— (1) Where an application is reinstated under section 35A—
|
|
| |
(a) anything done under or in relation to the application during the period between termination and reinstatement shall be treated as valid,
|
|
| |
(b) in a case where the application has been published under section 28 before its termination, anything done during the period referred to in paragraph (a), which would have constituted an infringement of the rights conferred by publication of the application if the termination had not occurred, shall be treated as an infringement of those rights if it was a continuation or repetition of an earlier act infringing those rights,
|
|
| |
(c) in a case where the application has been published under section 28 before its termination and, after the termination and before publication of a notice of request for its reinstatement, a person—
|
|
| |
(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 termination had not taken place, or
|
|
| |
(ii) made, in good faith, effective and serious preparations to do such an act,
|
|
| |
the person shall have the right to continue to do the act concerned or, as the case may be, to do that act, notwithstanding the reinstatement of the application and the grant of the patent.
|
|
| |
(2) Paragraph (c) of subsection (1) does not extend to granting a licence to any person to do an act referred to in that paragraph.
|
|
| |
(3) If the act referred to in paragraph (c) of subsection (1) was done, or the preparations were made to do it, in the course of a business, the person entitled to the right conferred by the said paragraph (c) may—
|
|
| |
(a) authorise that act to be done by any partner of that person for the time being in that business, and
|
|
| |
(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.
|
|
| |
(4) Where a product is disposed of by any person to another person in exercise of a right conferred by paragraph (c) of subsection (1) or by subsection (3), 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.
|
|
| |
(5) In this section ‘ termination’ , in relation to an application, means—
|
|
| |
(a) the refusal of the application, or
|
|
| |
(b) the application is treated as having been withdrawn.”.
|
