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Patents Act 1977 CHAPTER 37
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| An Act to establish a new law of patents applicable to future patents and applications for patents; to amend the law of patents applicable to existing patents and applications for patents; to give effect to certain international conventions on patents; and for connected purposes. | |
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| BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— | |
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| (1) A patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say— | |
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| and references in this Act to a patentable invention shall be construed accordingly. | |
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| (2) It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of— | |
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| but the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such. | |
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| (3) A patent shall not be granted— | |
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| (1) An invention shall be taken to be new if it does not form part of the state of the art. | |
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| (2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way. | |
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| (3) The state of the art in the case of an invention to which an application for a patent or a patent relates shall be taken also to comprise matter contained in an application for another patent which was published on or after the priority date of that invention, if the following conditions are satisfied, that is to say— | |
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| (4) For the purposes of this section the disclosure of matter constituting an invention shall be disregarded in the case of a patent or an application for a patent if occurring later than the beginning of the period of six months immediately preceding the date of filing the application for the patent and either— | |
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| (5) In this section references to the inventor include references to any proprietor of the invention for the time being. | |
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| (6) In the case of an invention consisting of a substance or composition for use in a method of treatment of the human or animal body by surgery or therapy or of diagnosis practised on the human or animal body, the fact that the substance or composition forms part of the state of the art shall not prevent the invention from being taken to be new if the use of the substance or composition in any such method does not form part of the state of the art. | |
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| (2) An invention of a method of treatment of the human or animal body by surgery or therapy or of diagnosis practised on the human or animal body shall not be taken to be capable of industrial application. | |
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| (1) For the purposes of this Act the priority date of an invention to which an application for a patent relates and also of any matter (whether or not the same as the invention) contained in any such application is, except as provided by the following provisions of this Act, the date of filing the application. | |
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| (2) If in or in connection with an application for a patent (the application in suit) a declaration is made, whether by the applicant or any predecessor in title of his, complying with the relevant requirements of rules and specifying one or more earlier relevant applications for the purposes of this section made by the applicant or a predecessor in title of his and each having a date of filing during the period of twelve months immediately preceding the date of filing the application in suit, then— | |
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| (3) Where an invention or other matter contained in the application in suit was also disclosed in two earlier relevant applications filed by the same applicant as in the case of the application in suit or a predecessor in title of his and the second of those relevant applications was specified in or in connection with the application in suit, the second of those relevant applications shall, so far as concerns that invention or matter, be disregarded unless— | |
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| (4) The foregoing provisions of this section shall apply for determining the priority date of an invention for which a patent has been granted as they apply for determining the priority date of an invention to which an application for that patent relates. | |
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| (5) In this section “relevant application” means any of the following applications which has a date of filing, namely— | |
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| Disclosure of matter, etc., between earlier and later applications. | |
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| “relevant intervening acts” means acts done in relation to matter disclosed in an earlier relevant application between the dates of the earlier relevant application and the application in suit, as for example, filing another application for the invention for which the earlier relevant application was made, making information available to the public about that invention or that matter or working that invention, but disregarding any application, or the disclosure to the public of matter contained in any application, which is itself to be disregarded for the purposes of section 5(3) above. | |
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| Right to apply for and obtain a patent and
be mentioned as inventor | |
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| Right to apply for and obtain a patent. | |
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| (1) Any person may make an application for a patent either alone or jointly with another. | |
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| (2) A patent for an invention may be granted— | |
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| (3) In this Act “inventor” in relation to an invention means the actual deviser of the invention and “joint inventor” shall be construed accordingly. | |
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| Determination before grant of questions about entitlement to patents, etc. | |
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| (1) At any time before a patent has been granted for an invention (whether or not an application has been made for it)— | |
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| and the comptroller shall determine the question and may make such order as he thinks fit to give effect to the determination. | |
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| (7) If it appears to the comptroller on a reference of a question under this section that the question involves matters which would more properly be determined by the court, he may decline to deal with it and, without prejudice to the court’s jurisdiction to determine any such question and make a declaration, or any declaratory jurisdiction of the court in Scotland, the court shall have jurisdiction to do so. | |
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| (8) No directions shall be given under this section so as to affect the mutual rights or obligations of trustees or of the personal representatives of deceased persons, or their rights or obligations as such. | |
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| Determination after grant of questions referred before grant. | |
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| Handling of application by joint applicants. | |
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| 10. If any dispute arises between joint applicants for a patent whether or in what manner the application should be proceeded with, the comptroller may, on a request made by any of the parties, 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 shall be proceeded with, or for both those purposes, according as the case may require. | |
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| Effect of transfer of application under s. 8 or 10. | |
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| that or those original applicant or applicants or the licensee shall, on making a request within the prescribed period to the person in whose name the application is to proceed, be entitled to be granted a licence (but not an exclusive licence) to continue working or, as the case may be, to work the invention. | |
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| (4) Any such licence shall be granted for a reasonable period and on reasonable terms. | |
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| Determination of questions about entitlement to foreign and convention patents, etc. | |
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| (1) At any time before a patent is granted for an invention in pursuance of an application made under the law of any country other than the United Kingdom or under any treaty or international convention (whether or not that application has been made)— | |
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| and the comptroller shall determine the question so far as he is able to and may make such order as he thinks fit to give effect to the determination. | |
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| (2) If it appears to the comptroller on a reference of a question under this section that the question involves matters which would more properly be determined by the court, he may decline to deal with it and, without prejudice to the court’s jurisdiction to determine any such question and make a declaration, or any declaratory jurisdiction of the court in Scotland, the court shall have jurisdiction to do so. | |
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| (6) In the following cases, that is to say— | |
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| (1) The inventor or joint inventors of an invention shall have a right to be mentioned as such in any patent granted for the invention and shall also have a right to be so mentioned if possible in any published application for a patent for the invention and, if not so mentioned, a right to be so mentioned in accordance with rules in a prescribed document. | |
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| (2) Unless he has already given the Patent Office the information hereinafter mentioned, an applicant for a patent shall within the prescribed period file with the Patent Office a statement— | |
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| and, if he fails to do so, the application shall be taken to be withdrawn. | |
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| (3) Where a person has been mentioned as sole or joint inventor in pursuance of this section, any other person who alleges that the former ought not to have been so mentioned may at any time apply to the comptroller for a certificate to that effect, and the comptroller may issue such a certificate; and if he does so, he shall accordingly rectify any undistributed copies of the patent and of any documents prescribed for the purposes of subsection (1) above. | |
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| (1) Every application for a patent— | |
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| (2) Every application for a patent shall contain— | |
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| but the foregoing provision shall not prevent an application being initiated by documents complying with section 15(1) below. | |
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| (3) The specification of an application shall disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the art. | |
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| (5) The claim or claims shall— | |
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| (8) Rules may require a person who has made an application for a patent for an invention which requires for its performance the use of a micro-organism not to impose or maintain in the prescribed circumstances any restrictions on the availability to the public of samples of the micro-organism and the uses to which they may be put, subject, however, to any prescribed exceptions, and rules may provide that in the event of a contravention of any provision included in the rules by virtue of this subsection the specification shall be treated for the purposes of this Act as not disclosing the invention in a manner required by subsection (3) above. | |
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| (9) An application for a patent may be withdrawn at any time before the patent is granted and any withdrawal of such an application may not be revoked. | |
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| Date of filing application. | |
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| (1) The date of filing an application for a patent shall, subject to the following provisions of this Act, be taken to be the earliest date on which the following conditions are satisfied in relation to the application, that is to say— | |
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| (5) An application which has a date of filing by virtue of the foregoing provisions of this section shall be taken to be withdrawn at the end of the relevant prescribed period, unless before that end the applicant— | |
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| Publication of application. | |
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| (2) The comptroller may omit from the specification of a published application for a patent any matter— | |
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| Preliminary examination and search. | |
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| (1) Where an application for a patent has a date of filing and is not withdrawn, and before the end of the prescribed period— | |
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| the comptroller shall refer the application to an examiner for a preliminary examination and search, except that he shall not refer the application for a search until it includes one or more claims. | |
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| (2) On a preliminary examination of an application the examiner shall determine whether the application complies with those requirements of this Act and the rules which are designated by the rules as formal requirements for the purposes of this Act and shall report his determination to the comptroller. | |
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| (5) On any such search the examiner shall determine whether or not the search would serve any useful purpose on the application as for the time being constituted and— | |
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| and in either event the applicant shall be informed of the examiner’s report. | |
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| (6) If it appears to the examiner, either before or on conducting a search under this section, that an application relates to two or more inventions, but that they are not so linked as to form a single inventive concept, he shall initially only conduct a search in relation to the first invention specified in the claims of the application, but may proceed to conduct a search in relation to another invention so specified if the applicant pays the search fee in respect of the application so far as it relates to that other invention. | |
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| Substantive examination and grant or refusal of patent. | |
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| the comptroller shall refer the application to an examiner for a substantive examination; and if no such request is made or the prescribed fee is not paid within that period, the application shall be treated as having been withdrawn at the end of that period. | |
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| (5) Where two or more applications for a patent for the same invention having the same priority date are filed by the same applicant or his successor in title, the comptroller may on that ground refuse to grant a patent in pursuance of more than one of the applications. | |
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| General power to amend application before grant. | |
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| (2) The comptroller may, without an application being made to him for the purpose, amend the specification and abstract contained in an application for a patent so as to acknowledge a registered trade mark. | |
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| (1) If it is not determined that an application for a patent complies before the end of the prescribed period with all the requirements of this Act and the rules, the application shall be treated as having been refused by the comptroller at the end of that period, and section 97 below shall apply accordingly. | |
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| (2) If at the end of that period an appeal to the court is pending in respect of the application or the time within which such an appeal could be brought has not expired, that period— | |
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| Observations by third party on patentability. | |
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| (1) Where an application for a patent has been published but a patent has not been granted to the applicant, any other person may make observations in writing to the comptroller on the question whether the invention is a patentable invention, stating reasons for the observations, and the comptroller shall consider the observations in accordance with rules. | |
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| (2) It is hereby declared that a person does not become a party to any proceedings under this Act before the comptroller by reason only that he makes observations under this section. | |
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| Information prejudicial to defence of realm or safety of public. | |
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| (1) Where an application for a patent is filed in the Patent Office (whether under this Act or any treaty or international convention to which the United Kingdom is a party and whether before or after the appointed day) and it appears to the comptroller that the application contains information of a description notified to him by the Secretary of State as being information the publication of which might be prejudicial to the defence of the realm, the comptroller may give directions prohibiting or restricting the publication of that information or its communication to any specified person or description of persons. | |
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| (2) If it appears to the comptroller that any application so filed contains information the publication of which might be prejudicial to the safety of the public, he may give directions prohibiting or restricting the publication of that information or its communication to any specified person or description of persons until the end of a period not exceeding three months from the end of the period prescribed for the purposes of section 16 above. | |
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| (3) While directions are in force under this section with respect to an application— | |
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| (5) Where the comptroller gives directions under this section with respect to any application, he shall give notice of the application and of the directions to the Secretary of State, and the following provisions shall then have effect:— | |
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| (6) The Secretary of State may do the following for the purpose of enabling him to decide the question referred to insubsection (5)(c) above— | |
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| (7) Where directions have been given under this section in respect of an application for a patent for an invention and, before the directions are revoked, that prescribed period expires and the application is brought in order for the grant of a patent, then— | |
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| (8) Where a patent is granted in pursuance of an application in respect of which directions have been given under this section, no renewal fees shall be payable in respect of any period during which those directions were in force. | |
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| (9) A person who fails to comply with any direction under this section shall be liable— | |
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| Restrictions on applications abroad by United Kingdom residents. | |
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| (1) Subject to the following provisions of this section, no person resident in the United Kingdom shall, without written authority granted by the comptroller, file or cause to be filed outside the United Kingdom an application for a patent for an invention unless— | |
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| (3) A person who files or causes to be filed an application for the grant of a patent in contravention of this section shall be liable— | |
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| Provisions as to patents after grant | |
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| Publication and certificate of grant. | |
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| (1) As soon as practicable after a patent has been granted under this Act the comptroller shall publish in the journal a notice that it has been granted. | |
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| (2) A rule prescribing any such other date under this section shall not be made unless a draft of the rule has been laid before, and approved by resolution of, each House of Parliament. | |
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| (3) A patent shall cease to have effect at the end of the period prescribed for the payment of any renewal fee if it is not paid within that period. | |
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| (4) If during the period of six months immediately following the end of the prescribed period the renewal fee and any prescribed additional fee are paid, the patent shall be treated for the purposes of this Act as if it had never expired, and accordingly— | |
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| (5) Rules shall include provision requiring the comptroller to notify the registered proprietor of a patent that a renewal fee has not been received from him in the Patent Office before the end of the prescribed period and before the framing of the notification. | |
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| Patent not to be impugned for lack of unity. | |
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| 26. No person may in any proceeding object to a patent or to an amendment of a specification of a patent on the ground that the claims contained in the specification of the patent, as they stand or, as the case may be, as proposed to be amended, relate— | |
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| General power to amend specification after grant. | |
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| (2) No such amendment shall be allowed under this section where there are pending before the court or the comptroller proceedings in which the validity of the patent may be put in issue. | |
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| (3) An amendment of a specification of a patent under this section shall have effect and be deemed always to have had effect from the grant of the patent. | |
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| (4) The comptroller may, without an application being made to him for the purpose, amend the specification of a patent so as to acknowledge a registered trade-mark. | |
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| (5) A person may give notice to the comptroller of his opposition to an application under this section by the proprietor of a patent, and if he does so the comptroller shall notify the proprietor and consider the opposition in deciding whether to grant the application. | |
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| Restoration of lapsed patents. | |
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| (1) Where a patent has ceased to have effect by reason of a failure to pay any renewal fee within the prescribed period, an application for the restoration of the patent may be made to the comptroller under this section within one year from the date on which the patent ceased to have effect. | |
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| (2) An application under this section may be made by the person who was the proprietor of the patent or by any other person who would have been entitled to the patent if it had not ceased to have effect; and where the patent was held by two or more persons jointly, the application may, with the leave of the comptroller, be made by one or more of them without joining the others. | |
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| (3) If the comptroller is satisfied that— | |
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| the comptroller shall by order restore the patent on payment of any unpaid renewal fee and any prescribed additional fee. | |
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| (4) An order under this section may be made subject to such conditions as the comptroller thinks fit (including a condition requiring compliance with any provisions of the rules relating to registration which have not been complied with), and if the proprietor of the patent does not comply with any condition of such an order the comptroller may revoke the order and give such directions consequential on the revocation as he thinks fit. | |
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| (5) Where an order is made under this section and, between the end of the period of six months beginning with the date when the patent concerned ceased to have effect and the date of the application under this section,— | |
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| (6) Any such person shall have the right— | |
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| and the doing of that act by virtue of this subsection shall not amount to an infringement of the patent concerned. | |
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| (1) The proprietor of a patent may at any time by notice given to the comptroller offer to surrender his patent. | |
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| (2) A person may give notice to the comptroller of his opposition to the surrender of a patent under this section, and if he does so the comptroller shall notify the proprietor of the patent and determine the question. | |
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| (3) If the comptroller is satisfied that the patent may properly be surrendered, he may accept the offer and, as from the date when notice of his acceptance is published in the journal, the patent shall cease to have effect, but no action for infringement shall lie in respect of any act done before that date and no right to compensation shall accrue for any use of the patented invention before that date for the services of the Crown. | |
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| Property in patents and applications,
and registration | |
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| Nature of, and transactions in, patents and applications for patents. | |
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| (1) Any patent or application for a patent is personal property (without being a thing in action), and any patent or any such application and rights in or under it may be transferred, created or granted in accordance with subsections (2) to (7) below. | |
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| (3) Any patent or any such application or right shall vest by operation of law in the same way as any other personal property and may be vested by an assent of personal representatives. | |
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| (6) Any of the following transactions, that is to say— | |
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| shall be void unless it is in writing and is signed by or on behalf of the parties to the transaction (or, in the case of an assent or other transaction by a personal representative, by or on behalf of the personal representative) or in the case of a body corporate is so signed or is under the seal of that body. | |
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| Nature of, and transactions in, patents and applications for patents in Scotland. | |
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| (3) Any patent or any such application, or any right in it, may be assigned and security may be granted over a patent or any such application or right. | |
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| (4) A licence may be granted, under any patent or any application for a patent, for working the invention which is the subject of the patent or the application. | |
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| (6) Any assignation or grant of security under this section may be carried out only by writing probative or holograph of the parties to the transaction. | |
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| Register of patents, etc. | |
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| (1) There shall continue to be a register kept at the Patent Office and known as the register of patents which shall comply with rules made by virtue of this section and shall be kept in accordance with such rules; and in this Act, except so far as the context otherwise requires— | |
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| “register”, as a noun, means the register of patents; | |
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| “register”, as a verb, means, in relation to any thing, to register or register particulars, or enter notice, of that thing in the register and, in relation to a person, means to enter his name in the register; | |
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| and cognate expressions shall be construed accordingly. | |
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| (2) Without prejudice to any other provision of this Act or rules, rules may make provision with respect to the following matters, including provision imposing requirements as to any of those matters, that is to say— | |
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| Effect of registration, etc., on rights in patents. | |
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| (1) Any person who claims to have acquired the property in a patent or application for a patent by virtue of any transaction, instrument or event to which this section applies shall be entitled as against any other person who claims to have acquired that property by virtue of an earlier transaction, instrument or event to which this section applies if, at the time of the later transaction, instrument or event— | |
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| (3) This section applies to the following transactions, instruments and events:— | |
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| (i) transferring a patent or application or any right in or under it to any person; or | |
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| (ii) that an application should proceed in the name of any person; | |
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| and in either case the event by virtue of which the court or authority had power to make any such order or give any such directions. | |
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| Rectification of register. | |
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| (1) The court may, on the application of any person aggrieved, order the register to be rectified by the making, or the variation or deletion, of any entry in it. | |
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| (2) In proceedings under this section the court may determine any question which it may be necessary or expedient to decide in connection with the rectification of the register. | |
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| (3) Rules of court may provide for the notification of any application under this section to the comptroller and for his appearance on the application and for giving effect to any order of the court on the application. | |
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| Evidence of register, documents, etc. | |
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| (1) The register shall be prima facie evidence of anything required or authorised by this Act or rules to be registered and in Scotland shall be admissible and sufficient evidence of any such thing. | |
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| (2) A certificate purporting to be signed by the comptroller and certifying that any entry which he is authorised by this Act or rules to make has or has not been made, or that any other thing which he is so authorised to do has or has not been done, shall be prima facie evidence, and in Scotland shall be admissible and sufficient evidence, of the matters so certified. | |
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| (3) Each of the following, that is to say— | |
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| purporting to be certified by the comptroller and to be sealed with the seal of the Patent Office shall be admitted in evidence without further proof and without production of the original, and in Scotland such evidence shall be sufficient evidence. | |
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| Co-ownership of patents and applications for patents. | |
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| (1) Where a patent is granted to two or more persons, each of them shall, subject to any agreement to the contrary, be entitled to an equal undivided share in the patent. | |
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| (2) Where two or more persons are proprietors of a patent, then, subject to the provisions of this section and subject to any agreement to the contrary— | |
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| (4) Subject to the provisions of those sections, where two or more persons are proprietors of a patent, anyone else may supply one of those persons with the means, relating to an essential element of the invention, for putting the invention into effect, and the supply of those means by virtue of this subsection shall not amount to an infringement of the patent. | |
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| (5) Where a patented product is disposed of by any of two or more proprietors to any person, that person and any other person claiming through him shall be entitled to deal with the product in the same way as if it had been disposed of by a sole registered proprietor. | |
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| (7) The foregoing provisions of this section shall have effect in relation to an application for a patent which is filed as they have effect in relation to a patent and— | |
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| Determination of right to patent after grant. | |
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| (1) After a patent has been granted for an invention— | |
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| and the comptroller shall determine the question and make such order as he thinks fit to give effect to the determination. | |
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| and where such a new application is made, it shall be treated as having been filed on the date of filing the application for the patent to which the reference relates. | |
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| (6) An order under this section shall not be so made as to affect the mutual rights or obligations of trustees or of the personal representatives of a deceased person, or their rights or obligations as such. | |
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| (9) The court shall not in the exercise of any such declaratory jurisdiction determine a question whether a patent was granted to a person not entitled to be granted the patent if the proceedings in which the jurisdiction is invoked were commenced after the end of the period of two years beginning with the date of the grant of the patent, unless it is shown that any person registered as a proprietor of the patent knew at the time of the grant or, as the case may be, of the transfer of the patent to him that he was not entitled to the patent. | |
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| Effect of transfer of patent under s. 37. | |
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| (4) Any such licence shall be granted for a reasonable period and on reasonable terms. | |
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| (5) The new proprietor or proprietors of the patent or any person claiming that he is entitled to be granted any such licence may refer to the comptroller the question whether that person is so entitled and whether any such period is or terms are reasonable, and the comptroller shall determine the question and may, if he considers it appropriate, order the grant of such a licence. | |
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| Right to employees’ inventions. | |
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| (1) Notwithstanding anything in any rule of law, an invention made by an employee shall, as between him and his employer, be taken to belong to his employer for the purposes of this Act and all other purposes if— | |
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| (2) Any other invention made by an employee shall, as between him and his employer, be taken for those purposes to belong to the employee. | |
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| Compensation of employees for certain inventions. | |
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| (1) Where it appears to the court or the comptroller on an application made by an employee within the prescribed period that the employee has made an invention belonging to the employer for which a patent has been granted, that the patent is (having regard among other things to the size and nature of the employer’s undertaking) of outstanding benefit to the employer and that by reason of those facts it is just that the employee should be awarded compensation to be paid by the employer, the court or the comptroller may award him such compensation of an amount determined under section 41 below. | |
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| (2) Where it appears to the court or the comptroller on an application made by an employee within the prescribed period that— | |
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| the court or the comptroller may award him such compensation of an amount determined under section 41 below. | |
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| (5) If it appears to the comptroller on an application under this section that the application involves matters which would more properly be determined by the court, he may decline to deal with it. | |
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| “the prescribed period”, in relation to proceedings before the court, means the period prescribed by rules of court, and | |
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| “relevant collective agreement” means a collective agreement within the meaning of the Trade Union and Labour Relations Act 1974, made by or on behalf of a trade union to which the employee belongs, and by the employer or an employers’ association to which the employer belongs which is in force at the time of the making of the invention. | |
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| (7) References in this section to an invention belonging to an employer or employee are references to it so belonging as between the employer and the employee. | |
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| to a person connected with him shall be taken to be the amount which could reasonably be expected to be so derived by the employer if that person had not been connected with him. | |
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| (3) Where the Crown or a Research Council in its capacity as employer assigns or grants the property in, or any right in or under, an invention, patent or application for a patent to a body having among its functions that of developing or exploiting inventions resulting from public research and does so for no consideration or only a nominal consideration, any benefit derived from the invention, patent or application by that body shall be treated for the purposes of the foregoing provisions of this section as so derived by the Crown or, as the case may be, Research Council. | |
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| In this subsection “Research Council” means a body which is a Research Council for the purposes of the Science and Technology Act 1965. | |
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| (4) In determining the fair share of the benefit to be secured for an employee in respect of a patent for an invention which has always belonged to an employer, the court or the comptroller shall, among other things, take the following matters into account, that is to say— | |
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| (5) In determining the fair share of the benefit to be secured for an employee in respect of a patent for an invention which originally belonged to him, the court or the comptroller shall, among other things, take the following matters into account, that is to say— | |
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| Enforceability of contracts relating to employees’ inventions. | |
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| (1) This section applies to any contract (whenever made) relating to inventions made by an employee, being a contract entered into by him— | |
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| (2) Any term in a contract to which this section applies which diminishes the employee’s rights in inventions of any description made by him after the appointed day and the date of the contract, or in or under patents for those inventions or applications for such patents, shall be unenforceable against him to the extent that it diminishes his rights in an invention of that description so made, or in or under a patent for such an invention or an application for any such patent. | |
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| (4) This section applies to any arrangement made with a Crown employee by or on behalf of the Crown as his employer as it applies to any contract made between an employee and an employer other than the Crown, and for the purposes of this section “Crown employee” means a person employed under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by any enactment. | |
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| Contracts as to patented products, etc. | |
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| Avoidance of certain restrictive conditions. | |
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| (1) Subject to the provisions of this section, any condition or term of a contract for the supply of a patented product or of a licence to work a patented invention, or of a contract relating to any such supply or licence, shall be void in so far it purports— | |
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| (3) In proceedings against any person for infringement of a patent it shall be a defence to prove that at the time of the infringement there was in force a contract relating to the patent made by or with the consent of the plaintiff or pursuer or a licence under the patent granted by him or with his consent and containing in either case a condition or term void by virtue of this section. | |
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| (4) A condition or term of a contract or licence shall not be void by virtue of this section if— | |
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| (5) If in any proceeding it is alleged that any condition or term of a contract or licence is void by virtue of this section it shall lie on the supplier or licensor to prove the matters set out in paragraph (a) of subsection (4) above. | |
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| (6) A condition or term of a contract or licence shall not be void by virtue of this section by reason only that it prohibits any person from selling goods other than those supplied by a specific person or, in the case of a contract for the hiring of or licence to use a patented product, that it reserves to the bailor (or, in Scotland, hirer) or licensor, or his nominee, the right to supply such new parts of the patented product as may be required to put or keep it in repair. | |
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| Determination of parts of certain contracts. | |
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| (1) Any contract for the supply of a patented product or licence to work a patented invention, or contract relating to any such supply or licence, may at any time after the patent or all the patents by which the product or invention was protected at the time of the making of the contract or granting of the licence has or have ceased to be in force, and notwithstanding anything to the contrary in the contract or licence or in any other contract, be determined, to the extent (and only to the extent) that the contract or licence relates to the product or invention, by either party on giving three months’ notice in writing to the other party. | |
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| (5) The foregoing provisions of this section apply to contracts and licences whether made before or after the appointed day. | |
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| (6) The provisions of this section shall be without prejudice to any rule of law relating to the frustration of contracts and any right of determining a contract or licence exercisable apart from this section. | |
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| Licences of right and compulsory licences | |
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| Patentee’s application for entry in register that licenses are available as of right. | |
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| (1) At any time after the grant of a patent its proprietor may apply to the comptroller for an entry to be made in the register to the effect that licences under the patent are to be available as of right. | |
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| (2) Where such an application is made, the comptroller shall give notice of the application to any person registered as having a right in or under the patent and, if satisfied that the proprietor of the patent is not precluded by contract from granting licences under the patent, shall make that entry. | |
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| (3) Where such an entry is made in respect of a patent— | |
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| (4) The licensee under a licence of right may (unless, in the case of a licence the terms of which are settled by agreement, the licence otherwise expressly provides) request the proprietor of the patent to take proceedings to prevent any infringement of the patent; and if the proprietor refuses or neglects to do so within two months after being so requested, the licensee may institute proceedings for the infringement in his own name as if he were proprietor, making the proprietor a defendant or defender. | |
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| (5) A proprietor so added as defendant or defender shall not be liable for any costs or expenses unless he enters an appearance and takes part in the proceedings. | |
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| Cancellation of entry made under s. 46. | |
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| (2) Where such an application is made and the balance paid of all renewal fees which would have been payable if the entry had not been made, the comptroller may cancel the entry, if satisfied that there is no existing licence under the patent or that all licensees under the patent consent to the application. | |
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| (5) Where an entry is cancelled under this section, the rights and liabilities of the proprietor of the patent shall afterwards be the same as if the entry had not been made. | |
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| (6) Where an application has been made under this section, then— | |
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| may within the prescribed period give notice to the comptroller of opposition to the cancellation; and the comptroller shall, in considering the application, determine whether the opposition is justified. | |
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| (1) At any time after the expiration of three years, or of such other period as may be prescribed, from the date of the grant of a patent, any person may apply to the comptroller on one or more of the grounds specified in subsection (3) below— | |
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| (5) Where the application is made on the ground that the patented invention is not being commercially worked in the United Kingdom or is not being so worked to the fullest extent that is reasonably practicable, and it appears to the comptroller that the time which has elapsed since the publication in the journal of a notice of the grant of the patent has for any reason been insufficient to enable the invention to be so worked, he may by order adjourn the application for such period as will in his opinion give sufficient time for the invention to be so worked. | |
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| Provisions about licences under s. 48. | |
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| Exercise of powers on applications under s. 43. | |
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| but shall not be required to take account of matters subsequent to the making of the application. | |
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| Application by Crown in cases of monopoly or merger. | |
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| (1) Where, on a reference under section 50 or 51 of the Fair Trading Act 1973 (the 1973 Act), a report of the Monopolies and Mergers Commission (the Commission), as laid before Parliament, contains conclusions to the effect— | |
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| (2) Where, on a reference under section 64 or 75 of the 1973 Act, a report of the Commission, as laid before Parliament, contains conclusions to the effect— | |
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| the comptroller may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences under the patent are to be available as of right. | |
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| (6) In this section “the appropriate Minister or Ministers”, in relation to a report of the Commission, means the Minister or Ministers to whom the report is made. | |
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| Opposition, appeal and arbitration. | |
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| the comptroller may at any time order the whole proceedings, or any question or issue of fact arising in them, to be referred to an arbitrator or arbiter agreed on by the parties or, in default of agreement, appointed by the comptroller. | |
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| 1950 c. 27. 1937 c. 8. (1 Edw. 8 & 1 Geo. 6) (N.I.). | |
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| (4) Where the whole proceedings are so referred, section 21 of the Arbitration Act 1950 or, as the case may be, section 22 of the Arbitration Act (Northern Ireland) 1937 (statement of cases by arbitrators) shall not apply to the arbitration; but unless the parties otherwise agree before the award of the arbitrator or arbiter is made an appeal shall lie from the award to the court. | |
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| (5) Where a question or issue of fact is so referred, the arbitrator or arbiter shall report his findings to the comptroller. | |
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| Compulsory licences; supplementary provisions. | |
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| Special provisions where patented invention is being worked abroad. | |
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| Use of patented inventions for
services of the Crown | |
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| Use of patented inventions for services of the Crown. | |
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| (1) Notwithstanding anything in this Act, any government department and any person authorised in writing by a government department may, for the services of the Crown and in accordance with this section, do any of the following acts in the United Kingdom in relation to a patented invention without the consent of the proprietor of the patent, that is to say— | |
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| and anything done by virtue of this subsection shall not amount to an infringement of the patent concerned. | |
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| (3) So far as the invention has before its priority date been duly recorded by or tried by or on behalf of a government department or the United Kingdom Atomic Energy Authority otherwise than in consequence of a relevant communication made in confidence, any use of the invention by virtue of this section may be made free of any royalty or other payment to the proprietor. | |
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| (4) So far as the invention has not been so recorded or tried, any use of it made by virtue of this section at any time either— | |
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| shall be made on such terms as may be agreed either before or after the use by the government department and the proprietor of the patent with the approval of the Treasury or as may in default of agreement be determined by the court on a reference under section 58 below. | |
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| (6) The authority of a government department 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 use in respect of which the authority is given is made, and may be given to any person whether or not he is authorised directly or indirectly by the proprietor of the patent to do anything in relation to the invention. | |
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| (7) Where any use of an invention is made by or with the authority of a government department under this section, then, unless it appears to the department that it would be contrary to the public interest to do so, the department shall notify the proprietor of the patent as soon as practicable after the second of the following events, that is to say, the use is begun and the patent is granted, and furnish him with such information as to the extent of the use as he may from time to time require. | |
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| (8) A person acquiring anything disposed of in the exercise of powers conferred by this section, and any person claiming through him, may deal with it in the same manner as if the patent were held on behalf of the Crown. | |
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| (9) In this section “relevant communication”, in relation to an invention, means a communication of the invention directly or indirectly by the proprietor of the patent or any person from whom he derives title. | |
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| Interpretation, etc., of provisions about Crown use. | |
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| (2) In this Act, except so far as the context otherwise requires, “the services of the Crown” includes— | |
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| and “use for the services of the Crown” shall be construed accordingly. | |
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| Rights of third parties in respect of Crown use. | |
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| the provisions of any licence, assignment, assignation or agreement to which this subsection applies shall be of no effect so far as those provisions restrict or regulate the working of the invention, or the use of any model, document or information relating to it, or provide for the making of payments in respect of, or calculated by reference to, such working or use; and the reproduction or publication of any model or document in connection with the said working or use shall not be deemed to be an infringement of any copyright subsisting in the model or document. | |
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| (3) Where an exclusive licence granted otherwise than for royalties or other benefits determined by reference to the working of the invention is in force under the patent or application concerned, then— | |
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| (10) Nothing in this section shall be construed as authorising the disclosure to a government department or any other person of any model, document or information to the use of which this section applies in contravention of any such licence, assignment, assignation or agreement as is mentioned in this section. | |
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| References of disputes as to Crown use. | |
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| (3) In determining under this section any dispute between a government department and any person as to the terms for the use of an invention for the services of the Crown, the court shall have regard— | |
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| (4) In determining whether or not to grant any relief under this section and the nature and extent of the relief granted the court shall, subject to the following provisions of this section, apply the principles applied by the court immediately before the appointed day to the granting of relief under section 48 of the 1949 Act. | |
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| (6) Where an amendment of the specification of a patent has been allowed under any of the provisions of this Act, the court shall not grant relief by way of compensation under this section in respect of any such use before the decision to allow the amendment unless the court is satisfied that the specification of the patent as published was framed in good faith and with reasonable skill and knowledge. | |
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| (8) Where in any such proceedings it is found that a patent is only partially valid, the court shall not grant relief by way of compensation, costs or expenses except where the proprietor of the patent proves that the specification of the patent was framed in good faith and with reasonable skill and knowledge, and in that event the court may grant relief in respect of that part of the patent which is valid and has been so used, subject to the discretion of the court as to costs and expenses and as to the date from which compensation should be awarded. | |
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| (12) In any proceedings under this section the court may at any time order the whole proceedings or any question or issue of fact arising in them to be referred, on such terms as the court may direct, to a Circuit judge discharging the functions of an official referee or an arbitrator in England and Wales or Northern Ireland, or to an arbiter in Scotland; and references to the court in the foregoing provisions of this section shall be construed accordingly. | |
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| (13) One of two or more joint proprietors of a patent or application for a patent may without the concurrence of the others refer a dispute to the court under this section, but shall not do so unless the others are made parties to the proceedings; but any of the others made a defendant or defender shall not be liable for any costs or expenses unless he enters an appearance and takes part in the proceedings. | |
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| Special provisions as to Crown use during emergency. | |
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| and any reference in this Act to the services of the Crown shall, as respects any period of emergency, include a reference to those purposes. | |
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| (3) In this section “period of emergency” means any period beginning with such date as may be declared by Order in Council to be the commencement, and ending with such date as may be so declared to be the termination, of a period of emergency for the purposes of this section. | |
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| (4) A draft of an Order under this section shall not be submitted to Her Majesty unless it has been laid before, and approved by resolution of, each House of Parliament. | |
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| (1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say— | |
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| (2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom. | |
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| (5) An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if— | |
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| “relevant ship” and “relevant aircraft, hovercraft or vehicle” mean respectively a ship and an aircraft, hovercraft or vehicle registered in, or belonging to, any country, other than the United Kingdom, which is a party to the Convention for the Protection of Industrial Property signed at Paris on 20th March 1883; and | |
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| “exempted aircraft” means an aircraft to which section 53 of the Civil Aviation Act 1949 (aircraft exempted from seizure in respect of patent claims) applies. | |
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| Proceedings for infringement of patent. | |
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| (1) Subject to the following provisions of this Part of this Act, civil proceedings may be brought in the court by the proprietor of a patent in respect of any act alleged to infringe the patent and (without prejudice to any other jurisdiction of the court) in those proceedings a claim may be made— | |
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| (2) The court shall not, in respect of the same infringement, both award the proprietor of a patent damages and order that he shall be given an account of the profits. | |
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| (3) The proprietor of a patent and any other person may by agreement with each other refer to the comptroller the question whether that other person has infringed the patent and on the reference the proprietor of the patent may make any claim mentioned in subsection (1)(c) or (e) above. | |
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| (4) Except so far as the context requires, in the following provisions of this Act— | |
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| (6) Subject to the following provisions of this Part of this Act, in determining whether or not to grant any kind of relief claimed under this section and the extent of the relief granted the court or the comptroller shall apply the principles applied by the court in relation to that kind of relief immediately before the appointed day. | |
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| Restrictions on recovery of damages for infringement. | |
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| (1) In proceedings for infringement of a patent damages shall not be awarded, and no order shall be made for an account of profits, against a defendant or defender who proves that at the date of the infringement he was not aware, and had no reasonable grounds for supposing, that the patent existed; and a person shall not be taken to have been so aware or to have had reasonable grounds for so supposing by reason only of the application to a product of the word “patent” or “patented”, or any word or words expressing or implying that a patent has been obtained for the product, unless the number of the patent accompanied the word or words in question. | |
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| (3) Where an amendment of the specification of a patent has been allowed under any of the provisions of this Act, no damages shall be awarded in proceedings for an infringement of the patent committed before the decision to allow the amendment unless the court or the comptroller is satisfied that the specification of the patent as published was framed in good faith and with reasonable skill and knowledge. | |
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| Relief for infringement of partially valid patent. | |
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| (2) Where in any such proceedings it is found that a patent is only partially valid, the court or the comptroller shall not grant relief, by way of damages, costs or expenses, except where the plaintiff or pursuer proves that the specification for the patent was framed in good faith and with reasonable skill and knowledge, and in that event the court or the comptroller may grant relief in respect of that part of the patent which is valid and infringed, subject to the discretion of the court or the comptroller as to costs or expenses and as to the date from which damages should be reckoned. | |
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| Right to continue use begun before priority date. | |
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| (1) Where a patent is granted for an invention, a person who in the United Kingdom before the priority date of the invention does in good faith an act which would constitute an infringement of the patent if it were in force, or makes in good faith effective and serious preparations to do such an act, shall have the rights conferred by subsection (2) below. | |
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| (2) Any such person shall have the right— | |
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| and the doing of that act by virtue of this subsection shall not amount to an infringement of the patent concerned. | |
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| Certificate of contested validity of patent. | |
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| (1) If in any proceedings before the court or the comptroller the validity of a patent to any extent is contested and that patent is found by the court or the comptroller to be wholly or partially valid, the court or the comptroller may certify the finding and the fact that the validity of the patent was so contested. | |
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| (2) Where a certificate is granted under this section, then, if in any subsequent proceedings before the court or the comptroller for infringement of the patent concerned or for revocation of the patent a final order or judgment or interlocutor is made or given in favour of the party relying on the validity of the patent as found in the earlier proceedings, that party shall, unless the court or the comptroller otherwise directs, be entitled to his costs or expenses as between solicitor and own client (other than the costs or expenses of any appeal in the subsequent proceedings). | |
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| Proceedings infringement by a co-owner. | |
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| (2) One of two or more joint proprietors of a patent may without the concurrence of the others bring proceedings in respect of an act alleged to infringe the patent, but shall not do so unless the others are made parties to the proceedings; but any of the others made a defendant or defender shall not be liable for any costs or expenses unless he enters an appearance and takes part in the proceedings. | |
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| Proceedings for infringement by exclusive licensee. | |
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| (1) Subject to the provisions of this section, the holder of an exclusive licence under a patent shall have the same right as the proprietor of the patent to bring proceedings in respect of any infringement of the patent committed after the date of the licence; and references to the proprietor of the patent in the provisions of this Act relating to infringement shall be construed accordingly. | |
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| (2) In awarding damages or granting any other relief in any such proceedings the court or the comptroller shall take into consideration any loss suffered or likely to be suffered by the exclusive licensee as such as a result of the infringement, or, as the case may be, the profits derived from the infringement, so far as it constitutes an infringement of the rights of the exclusive licensee as such. | |
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| (3) In any proceedings taken by an exclusive licensee by virtue of this section the proprietor of the patent shall be made a party to the proceedings, but if made a defendant or defender shall not be liable for any costs or expenses unless he enters an appearance and takes part in the proceedings. | |
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| Effect of non-registration on infringement proceedings. | |
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| Infringement of rights conferred by publication of application. | |
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| (1) Where an application for a patent for an invention is published, then, subject to subsections (2) and (3) below, the applicant shall have, as from the publication and until the grant of the patent, the same right as he would have had, if the patent had been granted on the date of the publication of the application, to bring proceedings in the court or before the comptroller for damages in respect of any act which would have infringed the patent; and (subject to subsections (2) and(3) below) references in sections 60 to 62 and 66 to 68 above to a patent and the proprietor of a patent shall be respectively construed as including references to any such application and the applicant, and references to a patent being in force, being granted, being valid or existing shall be construed accordingly. | |
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| (2) The applicant shall be entitled to bring proceedings by virtue of this section in respect of any act only— | |
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| Remedy for groundless threats of infringement proceedings. | |
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| (2) In any such proceedings the plaintiff or pursuer shall, if he proves that the threats were so made and satisfies the court that he is a person aggrieved by them, be entitled to the relief claimed unless— | |
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| (4) Proceedings may not be brought under this section for a threat to bring proceedings for an infringement alleged to consist of making or importing a product for disposal or of using a process. | |
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| (5) It is hereby declared that a mere notification of the existence of a patent does not constitute a threat of proceedings within the meaning of this section. | |
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| Declaration or declarator as to non-infringement. | |
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|
| (1) Without prejudice to the court’s jurisdiction to make a declaration or declarator apart from this section, a declaration or declarator that an act does not, or a proposed act would not, constitute an infringement of a patent may be made by the court or the comptroller in proceedings between the person doing or proposing to do the act and the proprietor of the patent, not withstanding that no assertion to the contrary has been made by the proprietor, if it is shown— | |
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| Power to revoke patents on application. | |
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| (1) Subject to the following provisions of this Act, the court or the comptroller may on the application of any person by order revoke a patent for an invention on (but only on) any of the following grounds, that is to say— | |
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| (6) Where the comptroller refuses to grant an application made to him by any person under this section, no application (otherwise than by way of appeal or by way of putting validity in issue in proceedings for infringement) may be made to the court by that person under this section in relation to the patent concerned, without the leave of the court. | |
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|
| (7) Where the comptroller has not disposed of an application made to him under this section, the applicant may not apply to the court under this section in respect of the patent concerned unless either— | |
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| Comptroller’s power to revoke patents on his own initiative. | |
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|
| (2) If it appears to the comptroller that a patent under this Act and a European patent (UK) have been granted for the same invention having the same priority date and that the applications for both patents were filed by the same applicant or his successor in title, the comptroller may, on his own initiative but only after the relevant date, consider whether to revoke the patent granted under this Act and may, after giving the proprietor of the patent an opportunity of making any observations and of amending the specification of the patent, revoke the patent. | |
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| | |
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| (3) In this section “the relevant date” means whichever of the following dates is relevant, that is to say— | |
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| Putting validity in issue | |
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| Proceedings in which validity of patent may be put in issue. | |
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|
| (1) Subject to the following provisions of this section, the validity of a patent may be put in issue— | |
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| | |
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| (2) The validity of a patent may not be put in issue in any other proceedings and, in particular, no proceedings may be instituted (whether under this Act or otherwise) seeking only a declaration as to the validity or invalidity of a patent. | |
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| (5) Where the validity of a patent is put in issue by way of defence or counterclaim the court or the comptroller shall, if it or he thinks it just to do so, give the defendant an opportunity to comply with the condition in subsection (4)(a) above. | |
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|
| (8) It is hereby declared that for the purposes of this Act the validity of a patent is not put in issue merely because the comptroller is considering its validity in order to decide whether to revoke it under section 73 above. | |
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| General provisions as to amendment of
patents and applications | |
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| Amendment of patent in infringement or revocation proceedings. | |
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|
| (2) A person may give notice to the court or the comptroller of his opposition to an amendment proposed by the proprietor of the patent under this section, and if he does so the court or the comptroller shall notify the proprietor and consider the opposition in deciding whether the amendment or any amendment should be allowed. | |
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| (3) An amendment of a specification of a patent under this section shall have effect and be deemed always to have had effect from the grant of the patent. | |
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| (4) Where an application for an order under this section is made to the court, the applicant shall notify the comptroller, who shall be entitled to appear and be heard and shall appear if so directed by the court. | |
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| Amendments of applications and patents not to include added matter. | |
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|
| (2) No amendment of an application or the specification of a patent shall be allowed under any of the provisions of this Act to which this subsection applies if it— | |
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| Part II
Provisions about International Conventions | |
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| European patents and patent applications | |
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| Effect of European patent (UK). | |
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| (6) While this subsection is in force— | |
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| Effect of filing an application for a European patent (UK). | |
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| (2) This section applies to the following provisions of this Act:— | |
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| if before that use or the doing of that act he has sent by post or delivered to the government department who made use or authorised the use of the invention, or, as the case may be, to the person alleged to have done the act, a translation into English of those claims. | |
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| Authentic text of European patents and patent applications. | |
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| (3) If any such translation results in a European patent or application conferring the narrower protection, the proprietor of or applicant for the patent may file a corrected translation with the Patent Office and, if he pays the prescribed fee within the prescribed period, the Patent Office shall publish it, but— | |
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| unless before that use or the doing of the act the corrected translation has been published by the Patent Office or the proprietor or applicant has sent the corrected translation by post or delivered it to the government department who made use or authorised the use of the invention or, as the case may be, to the person alleged to have done that act. | |
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| Conversion of European patent applications. | |
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| (2) The relevant conditions referred to above are that— | |
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| (3) Where an application for a European patent falls to be treated as an application for a patent under this Act by virtue of a direction under this section— | |
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| Jurisdiction to determine questions as to right to a patent. | |
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| (1) The court shall not have jurisdiction to determine a question to which this section applies except in accordance with the following provisions of this section. | |
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|
| (3) This section applies to a question arising before the grant of a European patent whether a person has a right to be granted a European patent, or a share in any such patent, and in this section “employer-employee question” means any such question between an employer and an employee, or their successors in title, arising out of an application for a European patent for an invention made by the employee. | |
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| (4) The court and the comptroller shall have jurisdiction to determine any question to which this section applies, other than an employer-employee question, if either of the following conditions is satisfied, that is to say— | |
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| and also if in either of those cases there is no written evidence that the parties have agreed to submit to the jurisdiction of the competent authority of a relevant contracting state other than the United Kingdom. | |
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| (5) The court and the comptroller shall have jurisdiction to determine an employer-employee question if either of the following conditions is satisfied, that is to say— | |
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| and also if in either of those cases there is no written evidence that the parties have agreed to submit to the jurisdiction of the competent authority of a relevant contracting state other than the United Kingdom or, where there is such evidence of such an agreement, if the proper law of the contract of employment does not recognise the validity of the agreement. | |
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| | |
|
| (8) References in this section to the determination of a question include respectively references to— | |
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| Effect of patent decisions of competent authorities of other states. | |
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| | |
|
| (2) The court or the comptroller may refuse to recognise any such determination that the applicant for a European patent had no right to be granted the patent, or any share in it, if either— | |
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| Patent agents and other representatives. | |
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| | |
|
| (1) No individual shall carry on for gain in the United Kingdom, alone or in partnership with any other person, the business of acting as agent or other representative of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller, or hold himself out or permit himself to be held out as so carrying on such a business, unless he satisfies the condition that his name and that of each of his partners appears on the European list. | |
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| | |
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| (5) Proceedings for an offence under this section may be begun at any time within twelve months from the date of the offence. | |
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| (7) In this section “the European list” means the list of professional representatives maintained by the European Patent Office in pursuance of the European Patent Convention. | |
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| | |
|
| European patent attorneys.
1974 c. 47., S.I. 1976/582 (N.I. 12). | |
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|
| | |
|
| (1) For the avoidance of doubt, it is hereby declared that any person whose name appears on the European list shall not be guilty of an offence under section 21 of the Solicitors Act 1974 or Article 22 of the Solicitors (Northern Ireland) Order 1976 by reason only of his describing himself as a European patent attorney. | |
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| | |
|
| (4) In this section “the European list” means the list of professional representatives maintained by the European Patent Office in pursuance of the European Patent Convention. | |
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| Implementation of Community Patent Convention. | |
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| | |
|
| (1) All rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Patent Convention and all remedies and procedures from time to time provided for by or under that convention shall by virtue of this section have legal effect in the United Kingdom and shall be used there, be recognised and available in law and be enforced, allowed and followed accordingly. | |
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| | |
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| (2) The Secretary of State may by regulations make provision— | |
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| (3) Regulations under this section may include any incidental, consequential, transitional or supplementary provision appearing to the Secretary of State to be necessary or expedient, including provision amending any enactment, whenever passed, other than an enactment contained in this Part of this Act, and provision for the application of any provision of the regulations outside the United Kingdom. | |
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| (5) In this section “domestic institution” means the court, the comptroller or the Patent Office, as the case may require. | |
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| Decisions on Community Patent Convention. | |
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| | |
|
| (1) For the purposes of all legal proceedings, including proceedings before the comptroller, any question as to the meaning or effect of the Community Patent Convention, or as to the validity, meaning and effect of any instrument made under or in implementation of that convention by any relevant convention institution shall be treated as a question of law (and if not referred to the relevant convention court, be for determination as such in accordance with the principles laid down by and any relevant decision of that court). | |
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|
| “relevant convention institution” means any institution established by or having functions under the Community Patent Convention, not being an institution of the United Kingdom or any other member state, and | |
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|
| “relevant convention court” does not include—. | |
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| Jurisdiction in legal proceedings in connection with Community Patent Convention. | |
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|
| | |
|
| (1) For the purposes of the application in the United Kingdom of Article 69 of the Community Patent Convention (residence of a party as founding jurisdiction in actions for infringement, etc.) the residence of a party shall be determined in accordance with the following provisions of this section until such date as the Secretary of State may by order appoint for the repeal of those provisions. | |
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| (2) For the purpose of determining whether a person is resident in any part of the United Kingdom the court shall apply the law of that part of the United Kingdom. | |
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| (4) Any other body corporate or any unincorporated body of persons shall be so treated as resident in that part of the United Kingdom where it has a principal place of business. | |
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| (5) Where any body has a principal place of business in two or more parts of the United Kingdom it shall be so treated as resident in all those parts. | |
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| (7) The question whether a person is to be taken for the purposes of this section as resident in the United Kingdom or any other country shall be determined in accordance with the law of that country of which he is a citizen if by that law his residence depends on that of another person or on the location of an authority. | |
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|
| International applications for patents | |
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| Effect of filing international application for a patent. | |
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| (4) The relevant conditions— | |
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| (5) The comptroller shall on payment of the prescribed fee publish any translation filed at the Patent Office undersubsection (4) above. | |
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| | |
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| except where the application or the designation of the United Kingdom in the application is deemed to be withdrawn under the Treaty because of an error or omission in the Patent Office or any other institution having functions under the Treaty or of an application not being received by the International Bureau, owing to circumstances outside the applicant’s control, before the end of the time limited for that purpose by the Treaty. | |
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| (10) The foregoing provisions of this section shall not apply to an international application for a patent (UK) which is treated by virtue of the European Patent Convention as an application for a European patent (UK) or which contains an indication that the applicant wishes to obtain a European patent (UK). | |
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| (11) If an international application for a patent which purports to designate the United Kingdom is refused a filing date under the Treaty and the comptroller determines that the refusal was caused by an error or omission in the Patent Office or any other institution having functions under the Treaty, he may direct that the application shall be treated as an application under this Act. | |
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| | |
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| Orders in Council as to convention countries. | |
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| (1) Her Majesty may with a view to the fulfilment of a treaty or international convention, arrangement or engagement, by Order in Council declare that any country specified in the Order is a convention country for the purposes of section 5 above. | |
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| (2) Her Majesty may by Order in Council direct that any of the Channel Islands, any colony or any British protectorate or protected state shall be taken to be a convention country for those purposes. | |
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| Evidence of conventions and instruments under conventions. | |
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| | |
|
| (1) Judicial notice shall be taken of the following, that is to say— | |
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|
| (3) Evidence of any instrument issued under the relevant convention by any such institution, including any judgment or order of the relevant convention court, or of any document in the custody of any such institution or reproducing in legible form any information in such custody otherwise than in legible form, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of that institution; and any document purporting to be such a copy shall be received in evidence without proof of the official position or handwriting of the person signing the certificate. | |
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|
| | |
|
| (4) Evidence of any such instrument may also be given in any legal proceedings— | |
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| (5) In any legal proceedings in Scotland evidence of any matter given in a manner authorised by this section shall be sufficient evidence of it. | |
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|
| | |
|
| “convention institution” means an institution established by or having functions under the relevant convention; | |
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|
| | |
|
| “relevant convention court” does not include a court of the United Kingdom or of any other country which is a party to the relevant convention; and | |
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|
| | |
|
| “legal proceedings”, in relation to the United Kingdom, includes proceedings before the comptroller. | |
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|
| | |
|
| Obtaining evidence for proceedings under the European Patent Convention | |
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|
| | |
|
| (1) Sections 1 to 3 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (provisions enabling United Kingdom courts to assist in obtaining evidence for foreign courts) shall apply for the purpose of proceedings before a relevant convention court under the European Patent Convention as they apply for the purpose of civil proceedings in a court exercising jurisdiction in a country outside the United Kingdom. | |
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| (2) In the application of those sections by virtue of this section any reference to the High Court, the Court of Session or the High Court of Justice in Northern Ireland shall include a reference to the comptroller. | |
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|
| (3) Rules under this Act may include provision— | |
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|
| (4) Rules of court and rules under this Act may provide for an officer of the European Patent Office to attend the hearing of an application under section 1 of that Act before the court or the comptroller, as the case may be, and examine the witnesses or request the court or comptroller to put specified questions to the witnesses. | |
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|
| | |
|
| 1911 c.6, 1946 c.13 (N.I.). | |
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|
| (5) Section 1(4) of the Perjury Act 1911 and section 1(4) of the Perjury Act (Northern Ireland) 1946 (statements made for the purposes, among others, of judicial proceedings in a tribunal of a foreign state) shall apply in relation to proceedings before a relevant convention court under the European Patent Convention as they apply to a judicial proceeding in a tribunal of a foreign state. | |
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| Enforcement of orders for costs. | |
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| | |
|
| 93. If the European Patent Office orders the payment of costs in any proceedings before it— | |
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| Communication of information to the European Patent Office, etc. | |
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|
| | |
|
| 94. It shall not be unlawful by virtue of any enactment to communicate the following information in pursuance of the European Patent Convention to the European Patent Office or the competent authority of any country which is party to the Convention, that is to say— | |
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| | |
|
| (1) There shall be paid out of moneys provided by Parliament any sums required by any Minister of the Crown or government department to meet any financial obligation of the United Kingdom under the European Patent Convention, the Community Patent Convention or the Patent Co-operation Treaty. | |
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|
| | |
|
| (2) Any sums received by any Minister of the Crown or government department in pursuance of either of those conventions or that treaty shall be paid into the Consolidated Fund. | |
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|
| Part III
Miscellaneous and General | |
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|
| (1) There shall be constituted, as part of the Chancery Division of the High Court, a Patents Court to take such proceedings relating to patents and other matters as may be prescribed by rules of court. | |
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| (2) The judges of the Patents Court shall be such of the puisne judges of the High Court as the Lord Chancellor may from time to time nominate. | |
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| (3) The foregoing provisions of this section shall not be taken as prejudicing the provisions of the Supreme Court of Judicature (Consolidation) Act 1925 which enable the whole jurisdiction of the High Court to be exercised by any judge of that court. | |
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| (4) Rules of court shall make provision for the appointment of scientific advisers to assist the Patents Court in proceedings under this Act and for regulating the functions of such advisers. | |
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|
| (5) The remuneration of any such adviser shall be determined by the Lord Chancellor with the consent of the Minister for the Civil Service and shall be defrayed out of moneys provided by Parliament. | |
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| | |
|
| Appeals from the comptroller. | |
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|
| | |
|
| (2) For the purpose of hearing appeals under this section the Patents Court may consist of one or more judges of that court in accordance with directions given by or on behalf of the Lord Chancellor; and the Patents Court shall not be treated as a divisional court for the purposes of section 31(1)(f) of the Supreme Court of Judicature (Consolidation) Act 1925 (appeals from divisional courts). | |
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| (3) An appeal shall not lie to the Court of Appeal from a decision of the Patents Court on appeal from a decision of the comptroller under this Act or rules— | |
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| but an appeal shall only lie to the Court of Appeal under this section if leave to appeal is given by the Patents Court or the Court of Appeal. | |
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| | |
|
| (5) An appeal shall not lie to the Inner House of the Court of Session from a decision of an Outer House judge on appeal from a decision of the comptroller under this Act or rules— | |
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| | |
|
| (1) In Scotland proceedings relating primarily to patents (other than proceedings before the comptroller) shall be competent in the Court of Session only, and any jurisdiction of the sheriff court relating to patents is hereby abolished except in relation to questions which are incidental to the issue in proceedings which are otherwise competent there. | |
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|
| | |
|
| (2) The remuneration of any assessor appointed to assist the court in proceedings under this Act in the Court of Session shall be determined by the Lord President of the Court of Session with the consent of the Minister for the Civil Service and shall be defrayed out of moneys provided by Parliament. | |
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|
| | |
|
| General powers of the court. | |
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|
| | |
|
| 99. The court may, for the purpose of determining any question in the exercise of its original or appellate jurisdiction under this Act or any treaty or international convention to which the United Kingdom is a party, make any order or exercise any other power which the comptroller could have made or exercised for the purpose of determining that question. | |
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|
| | |
|
| Burden of proof in certain cases. | |
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|
| | |
|
| (1) If the invention for which a patent is granted is a process for obtaining a new product, the same product produced by a person other than the proprietor of the patent or a licensee of his shall, unless the contrary is proved, be taken in any proceedings to have been obtained by that process. | |
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| | |
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| (2) In considering whether a party has discharged the burden imposed upon him by this section, the court shall not require him to disclose any manufacturing or commercial secrets if it appears to the court that it would be unreasonable to do so. | |
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|
| | |
|
| Exercise of comptroller’s discretionary powers. | |
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| | |
|
| 101. Without prejudice to any rule of law, the comptroller shall give any party to a proceeding before him an opportunity of being heard before exercising adversely to that party any discretion vested in the comptroller by this Act or rules. | |
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| | |
|
| Right of audience in patent proceedings. | |
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|
| | |
|
| (1) Any party to any proceedings before the comptroller under this Act or any treaty or international convention to which the United Kingdom is a party may appear before the comptroller in person or be represented by counsel or a solicitor (of any part of the United Kingdom) or a patent agent or, subject to rules under section 115 below, by any other person whom he desires to represent him. | |
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|
| | |
|
| (3) Without prejudice to the right of counsel to appear before the High Court, a member of the Bar of England and Wales who is not in actual practice, a solicitor of the Supreme Court and a patent agent shall each have the right to appear and be heard on behalf of any party to an appeal under this Act from the comptroller to the Patents Court. | |
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|
| | |
|
| Extension of privilege for communications with solicitors relating to patent proceedings. | |
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|
| | |
|
| (1) It is hereby declared that the rule of law which confers privilege from disclosure in legal proceedings in respect of communications made with a solicitor or a person acting on his behalf, or in relation to information obtained or supplied for submission to a solicitor or a person acting on his behalf, for the purpose of any pending or contemplated proceedings before a court in the United Kingdom extends to such communications so made for the purpose of any pending or contemplated— | |
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| | |
|
| “legal proceedings” includes proceedings before the comptroller; | |
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| | |
|
| the references to legal proceedings and pending or contemplated proceedings include references to applications for a patent or a European patent and to international applications for a patent; and | |
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|
| | |
|
| “the relevant conventions” means the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty. | |
|
|
| | |
|
| (3) This section shall not extend to Scotland. | |
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| | |
|
| Privilege for communications with patent agents relating to patent proceedings. | |
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|
| | |
|
| (1) This section applies to any communication made for the purpose of any pending or contemplated patent proceedings, being either— | |
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| | |
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| (i) on behalf of a patent agent; or | |
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| | |
|
| (ii) on behalf of a party to any pending or contemplated proceedings, | |
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| shall be treated as made by or to that patent agent or party, as the case may be. | |
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|
| (3) In any legal proceedings other than criminal proceedings a communication to which this section applies shall be privileged from disclosure in like manner as if any proceedings before the comptroller or the relevant convention court for the purpose of which the communication was made were proceedings before the court (within the meaning of this Act) and the patent agent in question had been the solicitor of the party concerned | |
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| “legal proceedings” includes proceedings before the comptroller; | |
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| “patent agent” means an individual registered as a patent agent in the register of patent agents, a company lawfully practising as a patent agent in the United Kingdom or a person who satisfies the condition mentioned insection 84(1) or (3) above; | |
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| | |
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| “patent proceedings” means proceedings under this Act or any of the relevant conventions before the court the comptroller or the relevant convention court, whether contested or uncontested and including an application for a patent, | |
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|
| “party”, in relation to any contemplated proceedings, means a prospective party to the proceedings; and | |
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| “the relevant conventions” means the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty. | |
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| (5) This section shall not extend to Scotland. | |
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| Extension of privilege in Scotland for communications relating to patent proceedings. | |
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| 105. It is hereby declared that in Scotland the rules of law which confer privilege from disclosure in legal proceedings in respect of communications, reports or other documents (by whomsoever made) made for the purpose of any pending or contemplated proceedings in a court in the United Kingdom extend to communications, reports or other documents made for the purpose of patent proceedings within the meaning of section 104 above. | |
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| Costs and expenses in proceedings before the Court under s. 40. | |
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| (2) If in any such proceedings the Patents Court directs that any costs of one party shall be paid by another party, the court may settle the amount of the costs by fixing a lump sum or may direct that the costs shall be taxed on a scale specified by the court, being a scale of costs prescribed by the Rules of the Supreme Court or by the County Court Rules. | |
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| Costs and expenses in proceedings before the comptroller. | |
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| (1) The comptroller may, in proceedings before him under this Act, by order award to any party such costs or, in Scotland, such expenses as he may consider reasonable and direct how and by what parties they are to be paid. | |
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| (2) In England and Wales any costs awarded under this section shall, if a county court so orders, be recoverable by execution issued from the county court or otherwise as if they were payable under an order of that court. | |
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| (3) In Scotland any order under this section for the payment of expenses may be enforced in like manner as a recorded decree arbitral. | |
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| (4) If any of the following persons, that is to say— | |
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| neither resides nor carries on business in the United Kingdom, the comptroller may require him to give security for the costs or expenses of the proceedings and in default of such security being given may treat the reference, application or notice as abandoned. | |
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| (5) In Northern Ireland any order under this section for the payment of costs may be enforced as if it were a money judgment. | |
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| Licences granted by order of comptroller. | |
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| Falsification of register etc. | |
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| 109. If a person makes or causes to be made a false entry in any register kept under this Act, or a writing falsely purporting to be a copy or reproduction of an entry in any such register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, he shall be liable— | |
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| Unauthorised claim of patent rights. | |
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| (1) If a person falsely represents that anything disposed of by him for value is a patented product he shall, subject to the following provisions of this section, be liable on summary conviction to a fine not exceeding £200. | |
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| (4) In proceedings for an offence under this section it shall be a defence for the accused to prove that he used due diligence to prevent the commission of the offence. | |
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| Unauthorised claim that patent has been applied for. | |
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|
| (1) If a person represents that a patent has been applied for in respect of any article disposed of for value by him and— | |
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| he shall, subject to the following provisions of this section, be liable on summary conviction to a fine not exceeding £200. | |
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| (4) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he used due diligence to prevent the commission of such an offence. | |
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| Misuse of title “Patent Office”. | |
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|
| 112. If any person uses on his place of business, or on any document issued by him, or otherwise, the words “Patent Office” or any other words suggesting that his place of business is, or is officially connected with, the Patent Office, he shall be liable on summary conviction to a fine not exceeding £500. | |
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| Offences by corporations. | |
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|
| (1) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. | |
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| Restrictions on practice as patent agent. | |
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|
| (1) An individual shall not, either alone or in partnership with any other person, practise, describe himself or hold himself out as a patent agent, or permit himself to be so described or held out, unless he is registered as a patent agent in the register of patent agents or (as the case may be) unless he and all his partners are so registered. | |
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| (2) A body corporate shall not practise, describe itself or hold itself out or permit itself to be described or held out as mentioned in subsection (1) above unless— | |
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| (3) Any person who contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding £1,000. | |
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| (4) Proceedings for an offence under this section may be begun at any time within twelve months from the date of the offence. | |
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| (5) This section shall not be construed as prohibiting solicitors from taking such part in proceedings relating to patents and applications for patents as has heretofore been taken by solicitors and, in particular, shall not derogate from the provisions of section 102 above as it applies to solicitors. | |
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| (6) A patent agent shall not be guilty of an offence under section 22 of the Solicitors Act 1974 or section 39 of the Solicitors (Scotland) Act 1933 (which prohibit the preparation for reward of certain instruments or writs by persons not legally qualified) by reason only of the preparation by him for use in proceedings under this Act before the comptroller or on appeal under this Act to the Patents Court from the comptroller of any document other than a deed. | |
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| (7) For Article 23(2)(d) of the Solicitors (Northern Ireland) Order 1976 there shall be substituted the following paragraph— | |
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| Power of comptroller to refuse to deal with certain agents. | |
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| (1) Rules may authorise the controller to refuse to recognise as agent in respect of any business under this Act— | |
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| (2) The comptroller shall refuse to recognise as agent in respect of any business under this Act any person who neither resides nor has a place of business in the United Kingdom. | |
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| Immunity of department as regards official acts. | |
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| 116. Neither the Secretary of State nor any officer of his— | |
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| Administrative provisions | |
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| Correction of errors in patents and applications. | |
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|
| (1) The comptroller may, subject to any provision of rules, correct any error of translation or transcription, clerical error or mistake in any specification of a patent or application for a patent or any document filed in connection with a patent or such an application. | |
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| (2) Where the comptroller is requested to correct such an error or mistake, any person may in accordance with rules give the comptroller notice of opposition to the request and the comptroller shall determine the matter. | |
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| Information about patent applications and patents, and inspection of documents. | |
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|
| (2) Subject to the following provisions of this section, until an application for a patent is so published documents or information constituting or relating to the application shall not, without the consent of the applicant, be published or communicated to any person by the comptroller. | |
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|
| nor shall that subsection prevent the Secretary of State from inspecting or authorising the inspection of an application for a patent or any connected documents under section 22(6)(a) above. | |
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|
| 119. Any notice required or authorised to be given by this Act or rules, and any application or other document so authorised or required to be made or filed, may be given, made or filed by post. | |
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| Hours of business and excluded days. | |
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|
| (1) Rules may specify the hour at which the Patent Office shall be taken to be closed on any day for purposes of the transaction by the public of business under this Act or of any class of such business, and may specify days as excluded days for any such purposes. | |
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| | |
|
| (2) Any business done under this Act on any day after the hour so specified in relation to business of that class, or on a day which is an excluded day in relation to business of that class, shall be taken to have been done on the next following day not being an excluded day; and where the time for doing anything under this Act expires on an excluded day that time shall be extended to the next following day not being an excluded day. | |
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| | |
|
| Comptroller’s annual report. | |
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|
| 121. Before 1st June in every year the comptroller shall cause to be laid before both Houses of Parliament a report with respect to the execution of this Act and the discharge of his functions under the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty, and every such report shall include an account of all fees, salaries and allowances, and other money received and paid by him under this Act, those conventions and that treaty during the previous year. | |
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| Crown’s right to sell forfeited articles. | |
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| 122. Nothing in this Act affects the right of the Crown or any person deriving title directly or indirectly from the Crown to dispose of or use articles forfeited under the laws relating to customs or excise. | |
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| | |
|
| (1) The Secretary of State may make such rules as he thinks expedient for regulating the business of the Patent Office in relation to patents and applications for patents (including European patents, applications for European patents and international applications for patents) and for regulating all matters placed by this Act under the direction or control of the comptroller; and in this Act, except so far as the context otherwise requires, “prescribed” means prescribed by rules and “rules” means rules made under this section. | |
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| (3) Rules may make different provision for different cases. | |
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| (4) Rules prescribing fees shall not be made except with the consent of the Treasury. | |
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|
| (5) The remuneration of any adviser appointed under rules to assist the comptroller in any proceeding shall be determined by the Secretary of State with the consent of the Minister for the Civil Service and shall be defrayed out of moneys provided by Parliament. | |
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| | |
|
| (6) Rules shall provide for the publication by the comptroller of a journal (in this Act referred to as “the journal”) containing particulars of applications for and grants of patents, and of other proceedings under this Act. | |
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| | |
|
| (7) Rules shall require or authorise the comptroller to make arrangements for the publication of reports of cases relating to patents, trade marks and registered designs decided by him and of cases relating to patents (whether under this Act or otherwise) trade marks, registered designs and copyright decided by any court or body (whether in the United Kingdom or elsewhere). | |
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| Rules, regulations and orders; supplementary. | |
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| (1) Any power conferred on the Secretary of State by this Act to make rules, regulations or orders shall be exercisable by statutory instrument. | |
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|
| (3) Any Order in Council or order under any provision of this Act may be varied or revoked by a subsequent order. | |
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|
| (1) For the purposes of this Act an invention for a patent for which an application has been made or for which a patent has been granted shall, unless the context otherwise requires, be taken to be that specified in a claim of the specification of the application or patent, as the case may be, as interpreted by the description and any drawings contained in that specification, and the extent of the protection conferred by a patent or application for a patent shall be determined accordingly. | |
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|
| (2) It is hereby declared for the avoidance of doubt that where more than one invention is specified in any such claim, each invention may have a different priority date under section 5 above. | |
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|
| (1) An instrument relating to a Community patent or to an application for a European patent shall not be chargeable with stamp duty by reason only of all or any of the provisions of the Community Patent Convention mentioned in subsection (2) below. | |
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| | |
|
| (2) The said provisions are— | |
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| Existing patents and applications. | |
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| (1) No application for a patent may be made under the 1949 Act on or after the appointed day. | |
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| Priorities between patents and applications under 1949 Act and this Act. | |
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|
| (1) The following provisions of this section shall have effect for the purpose of resolving questions of priority arising between patents and applications for patents under the 1949 Act and patents and applications for patents under this Act. | |
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|
| (5) For the purposes of this section and the provisions of the 1949 Act mentioned in this section the date of filing an application for a patent under that Act and the priority date of a claim of a complete specification under that Act shall be determined in accordance with the provisions of that Act, and the priority date of an invention which is the subject of a patent or application for a patent under this Act shall be determined in accordance with the provisions of this Act. | |
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| Application of Act to Crown. Interpretation. | |
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| 129.—This Act does not affect Her Majesty in her private capacity but, subject to that, it binds the Crown. | |
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|
| (1) In this Act, except so far as the context otherwise requires— | |
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| “application for a European patent (UK)” and “international application for a patent (UK)” each mean an application of the relevant description which, on its date of filing, designates the United Kingdom; | |
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| “Community Patent Convention” means the Convention for the European Patent for the Common Market and “Community patent” means a patent granted under that convention; | |
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|
| “comptroller” means the Comptroller-General of Patents, Designs and Trade Marks; | |
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|
| “Convention on International Exhibitions” means the Convention relating to International Exhibitions signed in Paris on 22nd November 1928, as amended or supplemented by any protocol to that convention which is for the time being in force; | |
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|
| | |
|
| “designate” in relation to an application or a patent, means designate the country or countries (in pursuance of the European Patent Convention or the Patent Co-operation Treaty) in which protection is sought for the invention which is the subject of the application or patent; | |
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|
| | |
|
| “employee” means a person who works or (where the employment has ceased) worked under a contract of employment or in employment under or for the purposes of a government department; | |
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|
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|
| “employer”, in relation to an employee, means the person by whom the employee is or was employed; | |
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|
| | |
|
| “European Patent Convention” means the Convention on the Grant of European Patents, “European patent” means a patent granted under that convention, “European patent (UK)” means a European patent designating the United Kingdom, “European Patent Bulletin” means the bulletin of that name published under that convention, and “European Patent Office” means the office of that name established by that convention; | |
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|
| | |
|
| “exclusive licence” means a licence from the proprietor of or applicant for a patent conferring on the licensee, or on him and persons authorised by him, to the exclusion of all other persons (including the proprietor or applicant), any right in respect of the invention to which the patent or application relates, and “exclusive licensee” and “non-exclusive licence” shall be construed accordingly; | |
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|
| | |
|
| “formal requirements” means those requirements designated as such by rules made for the purposes of section 17 above; | |
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|
| “international application for a patent” means an application made under the Patent Co-operation Treaty; | |
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|
| “International Bureau” means the secretariat of the World Intellectual Property Organization established by a convention signed at Stockholm on 14th July 1967; | |
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|
| “international exhibition” means an official or officially recognised international exhibition falling within the terms of the Convention on International Exhibitions or falling within the terms of any subsequent treaty or convention replacing that convention; | |
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|
| | |
|
| “mortgage”, when used as a noun, includes a charge for securing money or money’s worth and, when used as a verb, shall be construed accordingly; | |
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|
| “1949 Act” means the Patents Act 1949; | |
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|
| | |
|
| “patent” means a patent under this Act; | |
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|
| | |
|
| “patent agent” means a person carrying on for gain in the United Kingdom the business of acting as agent for other persons for the purpose of applying for or obtaining patents (other than European patents) in the United Kingdom or elsewhere or for the purpose of conducting proceedings in connection with such patents before the comptroller; | |
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|
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|
| “Patent Co-operation Treaty” means the treaty of that name signed at Washington on 19th June 1970; | |
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|
| “patented invention” means an invention for which a patent is granted and “patented process” shall be construed accordingly; | |
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|
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|
| “patented product” means a product which is a patented invention or, in relation to a patented process, a product obtained directly by means of the process or to which the process has been applied; | |
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|
| | |
|
| “published” means made available to the public (whether in the United Kingdom or elsewhere) and a document shall be taken to be published under any provision of this Act if it can be inspected as of right at any place in the United Kingdom by members of the public, whether on payment of a fee or not; and “republished” shall be construed accordingly; | |
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|
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|
| “register” and cognate expressions have the meanings assigned to them by section 32 above; | |
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|
| | |
|
| “relevant convention court”, in relation to any proceedings under the European Patent Convention, the Community Patent Convention or the Patent Co-operation Treaty, means that court or other body which under that convention or treaty has jurisdiction over those proceedings, including (where it has such jurisdiction) any department of the European Patent Office; | |
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|
| | |
|
| “right”, in relation to any patent or application, includes an interest in the patent or application and, without prejudice to the foregoing, any reference to a right in a patent includes a reference to a share in the patent; | |
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|
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|
| (4) References in this Act to an application for a patent, as filed, are references to such an application in the state it was on the date of filing. | |
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|
| (5) References in this Act to an application for a patent being published are references to its being published undersection 16 above. | |
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|
| (6) References in this Act to any of the following conventions, that is to say— | |
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|
| | |
|
| are references to that convention or any other international convention or agreement replacing it, as amended or supplemented by any convention or international agreement (including in either case any protocol or annex), or in accordance with the terms of any such convention or agreement, and include references to any instrument made under any such convention or agreement. | |
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|
| | |
|
| (7) Whereas by a resolution made on the signature of the Community Patent Convention the governments of the member states of the European Economic Community resolved to adjust their laws relating to patents so as (among other things) to bring those laws into conformity with the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty, it is hereby declared that the following provisions of this Act, that is to say, sections 1(1) to (4), 2 to 6, 14(3), (5) and (6), 37(5), 54, 60, 69, 72(1) and (2), 74(4), 82, 83, 88(6) and (7), 100 and 125, are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty have in the territories to which those Conventions apply. | |
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| | |
|
| (8) The Arbitration Act 1950 shall not apply to any proceedings before the comptroller under this Act. | |
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|
| (9) Except so far as the context otherwise requires, any reference in this Act to any enactment shall be construed as a reference to that enactment as amended or extended by or under any other enactment, including this Act. | |
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| | |
|
| 131. In the application of this Act to Northern Ireland— | |
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| Short title, extent, commencement consequential amendments and repeals. | |
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| | |
|
| (1) This Act may be cited as the Patents Act 1977. | |
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| | |
|
| (2) This Act shall extend to the Isle of Man, subject to any modifications contained in an Order made by Her Majesty in Council, and accordingly, subject to any such order, references in this Act to the United Kingdom shall be construed as including references to the Isle of Man. | |
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|
| (3) For the purposes of this Act the territorial waters of the United Kingdom shall be treated as part of the United Kingdom. | |
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|
| (4) This Act applies to acts done in an area designated by order under section 1(7) of the Continental Shelf Act 1964, in connection with the exploration of the sea bed or subsoil or exploitation of their natural resources, as it applies to acts done in the United Kingdom. | |
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| | |
|
| SCHEDULE 1
Application of 1949 Act to existing
patents and applications | |
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|
| | |
|
| (2) The provisions are sections 1 to 10, 11(1) and (2), 12, 13, 15 to 17, 19 to 21, 22(1) to (3), 23 to 26, 28 to 33, 46 to 53, 55,56, 59 to 67, 69, 76, 80, 87(2), 92(1), 96, 101, 102(1) and 103 to 107. | |
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|
| | |
|
| (c) no application shall, on or after the appointed day, be post-dated under this subsection to a date which is that of the appointed day or which falls after it”, | |
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|
| | |
|
| (a) “old existing patent” means an existing patent the date of which fell eleven years or more before the appointed day and also any patent of addition where the patent for the main invention is, or was at any time, an old existing patent by virtue of the foregoing provision; | |
|
|
| | |
|
| (c) any reference to the date of a patent shall, in relation to a patent of addition, be construed as a reference to the date of the patent for the main invention. | |
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|
| | |
|
| (2) Where the term of a new existing patent is extended by this paragraph,— | |
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|
| | |
|
| (a) any licence in force under the patent from immediately before the appointed day until the end of the sixteenth year from the date of the patent shall, together with any contract relating to the licence, continue in force so long as the patent remains in force (unless determined otherwise than in accordance with this sub-paragraph), but, if it is an exclusive licence, it shall after the end of that year be treated as a non-exclusive licence; | |
|
|
| | |
|
| (b) notwithstanding the terms of the licence, the licensee shall not be required to make any payment to the proprietor for working the invention in question after the end of that year; | |
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|
| | |
|
| (3) Where the term of a new existing patent is extended by this paragraph and any government department or any person authorised by a government department— | |
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|
| | |
|
| (a) has before the appointed day, used the invention in question for the services of the Crown; and | |
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|
| | |
|
| (b) continues to so use it until the end of the sixteenth year from the date of the patent, | |
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|
| | |
|
| any such use of the invention by any government department or person so authorised, after the end of that year, may be made free of any payment to the proprietor of the patent. | |
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|
| | |
|
| (4) Without prejudice to any rule of law about the frustration of contracts, where any person suffers loss or is subjected to liability by reason of the extension of the term of a patent by this paragraph, the court may on the application of that person determine how and by whom the loss or liability is to be borne and make such order as it thinks fit to give effect to the determination. | |
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|
| | |
|
| (b) by way of defence or on a counterclaim on an action for infringement; | |
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|
| | |
|
| that such a suggestion or representation was falsely made, the priority date of the claim shall be taken to be the date of filing the application for that patent. | |
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|
| | |
|
| “(1) Subject to the provisions of this Act, a patent may, on the application of any person interested, be revoked by the comptroller on any of the grounds set out in section 32(1) of this Act:”. | |
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|
| | |
|
| SCHEDULE 2
Application of this Act to Existing
Patents and Applications | |
|
|
| | |
|
| (2) The provisions are sections 22, 23, 25(3) to (5), 28 to 36, 44 to 54, 86, 96, 98, 99, 101 to 105, 107 to 111, 113 to 116, 118(1) to (3), 119 to 124, 130 and 132(2), (3) and (4). | |
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|
| | |
|
| 2. In those provisions as they apply by virtue of this Schedule— | |
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|
| | |
|
| (a) a reference to this Act includes a reference to the 1949 Act; | |
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|
| | |
|
| (b) a reference to a specified provision of this Act other than one of those provisions shall be construed as a reference to the corresponding provision of the 1949 Act (any provision of that Act being treated as corresponding to a provision of this Act if it was enacted for purposes which are the same as or similar to that provision of this Act); | |
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|
| | |
|
| (c) a reference to rules includes a reference to rules under the 1949 Act; | |
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|
| | |
|
| (d) references to a patent under this Act and to an application for such a patent include respectively a reference to an existing patent and application; | |
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|
| | |
|
| (e) references to the grant of a patent under this Act includes a reference to the sealing and grant of an existing patent; | |
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|
| | |
|
| (f) a reference to a patented product and to a patented invention include respectively a reference to a product and invention patented under an existing patent; | |
|
|
| | |
|
| (g) references to a published application for a patent under this Act, and to publication of such an application, include respectively references to a complete specification which has been published under the 1949 Act and to publication of such a specification (and a reference to an application for a patent under this Act which has not been published shall be construed accordingly); | |
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| (h) a reference to the publication in the journal of a notice of the grant of a patent includes a reference to the date of an existing patent; | |
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| (i) a reference to the priority date of an invention includes a reference to the priority date of the relevant claim of the complete specification. | |
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| SCHEDULE 3
Repeals of Provisions of 1949 Act | |
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| SCHEDULE 4
Transitional Provisions | |
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| 1. In so far as any instrument made or other thing done under any provision of the 1949 Act which is repealed by virtue of this Act could have been made or done under a corresponding provision of this Act, it shall not be invalidated by the repeals made by virtue of this Act but shall have effect as if made or done under that corresponding provision. | |
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| Use of patented invention for
services of the Crown | |
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| (1) Any question whether— | |
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| (a) an act done before the appointed day by a government department or a person authorised in writing by a government department amounts to the use of an invention for the services of the Crown; or | |
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| (b) any payment falls to be made in respect of any such use (whether to a person entitled to apply for a patent for the invention, to the patentee or to an exclusive licensee); | |
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| (a) for which an existing patent has been granted or an existing application for a patent has been made; or | |
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| (b) which was communicated before that day to a government department or any person authorised in writing by a government department by the proprietor of the patent or any person from whom he derives title; | |
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| (3) Where an act is commenced before the appointed day and continues to be done on or after that day, then, if it would not amount to the use of an invention for the services of the Crown under the 1949 Act, its continuance on or after that day shall not amount to such use under this Act. | |
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| (1) Any question whether an act done before the appointed day infringes an existing patent or the privileges or rights arising under a complete specification which has been published shall be determined in accordance with the law relating to infringement in force immediately before that day and, in addition to those provisions of the 1949 Act which continue to apply by virtue of Schedule 1 above, section 70 of that Act shall apply accordingly. | |
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| (3) Where an act is commenced before the appointed day and continues to be done on or after that day, then, if it would not, under the law in force immediately before that day, amount to an infringement of an existing patent or the privileges or rights arising under a complete specification, its continuance on or after that day shall not amount to the infringement of that patent or those privileges or rights. | |
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| (a) if issue has been joined on the notice before the appointed day, the opposition, any appeal from the comptroller’s decision on it and any further appeal shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court; | |
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| (b) in any other case, the notice shall be taken to have abated immediately before the appointed day. | |
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| (3) Where the comptroller has before the appointed day served a notice under section 12 of the Atomic Energy Act 1946 (restrictions on publication of information about atomic energy etc.) in respect of an existing application that section shall continue to apply to the application on and after that day; but where no such notice has been so served that section shall not apply to the application on and after that day. | |
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| (a) if issue has been joined on the application before the appointed day, the application, any appeal from the comptroller’s decision on it and any further appeal shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court; | |
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| (2) Where the comptroller has made no order before that day for the revocation of the patent under that section, the application shall be taken to have abated immediately before that day. | |
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| Licences of right and compulsory licences | |
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| Appeals from court on certain petitions
for revocation | |
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| Appeals from comptroller under continuing provisions
of 1949 Act | |
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| (1) In this paragraph “the continuing 1949 Act provisions” means the provisions of the 1949 Act which continue to apply on and after the appointed day as mentioned in paragraph 1 of Schedule 1 above. | |
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| (2) This paragraph applies where— | |
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| (a) the comptroller gives a decision or direction (whether before or on or after the appointed day) under any of the continuing 1949 Act provisions, and | |
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| (b) an appeal lies under those provisions from the decision or direction; | |
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| but this paragraph applies subject to the foregoing provisions of this Schedule. | |
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| (3) Where such an appeal has been instituted before the Appeal Tribunal before the appointed day, and the hearing of the appeal has begun but has not been completed before that day, the appeal (and any further appeal) shall be continued and disposed of under the old law. | |
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| (4) Where such an appeal has been so instituted, but the hearing of it has not begun before the appointed day, it shall be transferred by virtue of this sub-paragraph to the Patents Court on that day and the appeal (and any further appeal) shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court. | |
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| Appeals from comptroller under repealed provisions
of 1949 Act | |
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| (1) This paragraph applies where an appeal to the Appeal Tribunal has been instituted before the appointed day under any provision of the 1949 Act repealed by this Act. | |
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| (2) Where the hearing of such an appeal has begun but has not been completed before that day, the appeal (and any further appeal) shall be continued and disposed of under the old law. | |
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| (3) Where the hearing of such an appeal has not begun before that day, it shall be transferred by virtue of this sub-paragraph to the Patents Court on that day and the appeal (and any further appeal) shall be prosecuted under the old law, but as if references in the 1949 Act and rules made under it to the Appeal Tribunal were references to the Patents Court. | |
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| Appeals from Appeal Tribunal
to Court of Appeal | |
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| 16. In this Schedule “the old law” means the 1949 Act, any rules made under it and any relevant rule of law as it was or they were immediately before the appointed day. | |
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| 17. For the purposes of this Schedule— | |
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| (2) Nothing in the repeal by this Act of the Patents Act 1957 shall have effect as respects existing applications. | |
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| SCHEDULE 5
Consequential Amendments | |
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| Crown Proceedings Act 1947 (c. 44) | |
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| 1. In section 3 of the Crown Proceedings Act 1947, for subsection (2) there shall be substituted:— | |
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| Registered Designs Act 1949 (c. 88) | |
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| Defence Contracts Act 1958 (c. 38) | |
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| 4. In subsection (4) of section 4 of the Defence Contracts Act 1958, for the words from “Patents Act 1949” to the end there shall be substituted “Patents Act 1977”. | |
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| Administration of Justice Act 1970 (c. 31) | |
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| (1) In subsections (2) and (3) of section 10 of the Administration of Justice Act 1970 for “either” there shall be substituted, in each case, “the”. | |
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| (2) In subsection (4) of the said section 10, for “(as so amended)” there shall be substituted “(as amended by section 24 of the Administration of Justice Act 1969)”. | |
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| (3) For subsection (5) of the said section 10, there shall be substituted:— | |
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| “(5) In subsection (8) of the said section 28 (which confers power on the Tribunal to make rules about procedure etc.), there shall be inserted at end of the subsection the words “including right of audience”. | |
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| Atomic Energy Authority (Weapons Group)
Act 1973 (c. 4) | |
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| 6. In section 5(2) of the Atomic Energy Authority (Weapons Group) Act 1973— | |
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| (a) after the first “Patents Act 1949” there shall be inserted “, the Patents Act 1977”; and | |
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| Fair Trading Act 1973 (c. 41) | |
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| (1) In paragraph 10 of Schedule 4 to the Fair Trading Act 1973 for “Patents Act 1949” there shall be substituted “Patents Act 1977”. | |
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| (2) After the said paragraph 10 there shall be inserted:— | |
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| “10A. The services of persons carrying on for gain in the United Kingdom the business of acting as agents or other representatives of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller and whose names appear on the European list (within the meaning of section 84(7) of the Patents Act 1977) in their capacity as such persons.” | |
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| Restrictive Trade Practices Act 1976 (c. 34) | |
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| (1) In paragraph 10 of Schedule 1 to the Restrictive Trade Practices Act 1976, for “the Patents Act 1949” there shall be substituted “the Patents Act 1977”. | |
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| (2) After the said paragraph 10 there shall be inserted:— | |
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| “10A. The services of persons carrying on for gain in the United Kingdom the business of acting as agents or other representatives of other persons for the purpose of applying for or obtaining European patents or for the purpose of conducting proceedings in connection with such patents before the European Patent Office or the comptroller and whose names appear on the European list (within the meaning of section 84(7) of the Patents Act 1977), in their capacity as such persons.” | |
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| SCHEDULE 6
Enactments Repealed | |
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| The Patents and Designs
Act 1907. | |
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| The Atomic Energy Act 1946. | |
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| In section 12, subsections (1) to (7). | |
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| 12, 13 & 14 Geo. 6. c. 87. | |
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| The whole Act, except in relation to existing applications. | |
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| The Patents and Designs (Renewals, Extensions and Fees) Act 1961. | |
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| In section 1(1), the words from “subsection (5)” to “and in”. | |
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| The Northern Ireland Act 1962. | |
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| The Criminal Justice Act 1967. | |
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| In Schedule 3, in Parts I and IV, the entries relating to the Patents Act 1949. | |
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| The Civil Evidence Act 1968. | |
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| The Administration of Justice Act 1969. | |
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| The Administration of Justice Act 1970. | |
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| In section 10, in subsection (1), the words “Patents Appeal Tribunal or the” and in subsection (4), the words from “the Patents Appeal” to “and”. | |
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| The Civil Evidence Act (Northern Ireland) 1971. | |
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| The Fair Trading Act 1973. | |
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| In Schedule 3, in paragraph 16(2), the words from “of section 40” to “Commission)”, where first occurring. | |
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| In Schedule 12, the entry relating to the Patents Act 1949. | |
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| In Schedule 3, paragraph 3. | |
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