Sch.
PATENTS ACT (as amended)
claim of the specification before the amendment.
(4) The request for an amendment of an accepted complete specification and its nature and the reasons therefor
shall be advertised by the applicant in the Journal, and, at
any time within three months of the advertisement or such
further time as the Registrar, subject to such conditions as
he may impose, may allow, any person may give notice at
the Patent Office of opposition to the amendment.
(5) Notice of opposition in terms of subsection (4) shall
be given in the prescribed manner to the Registrar and to the
person making the request, and the Registrar shall hear the
person making the request and the person who has given
notice of opposition and determine whether and subject to
what conditions, if any, the amendment ought to be allowed.
(6) Where a complete specification has not been accepted, the Registrar shall determine whether and subject to
what conditions, if any, the amendment ought to be allowed.
(7) No request for amendment under this section shall be
allowed if and so long as any proceedings are pending for
infringement or revocation of the patent in question.
(8) An appeal shall lie from any decision of the Registrar
made under this section.
38 Amendment of specification with leave of High
Court or Tribunal
In any action for infringement of a patent or any proceedings before the Tribunal for the revocation of a patent, the
High Court or the Tribunal, as the case may be, may, subject
to subsection (3) of section thirty-seven, allow the patentee
to amend his complete specification in such manner and
subject to such terms as to costs, advertisement or otherwise
as the High Court or the Tribunal may think fit, and, if in
any such proceedings for revocation the Tribunal decides
that the patent is invalid, it may allow the specification to be
amended under this section instead of revoking the patent.
39 Restrictions on recovery of damages in certain
cases
Where an amendment of a specification by way of disclaimer, correction or explanation has been allowed under
this Act after the publication of the specification, no
damages shall be awarded in any proceedings in respect of
the use of the invention before the date of the decision
allowing the amendment if the High Court or the Tribunal is
satisfied that the specification as originally published was
not framed in good faith and with reasonable skill and
knowledge.
40 Savings for anticipation
An invention claimed in a complete specification shall not
be deemed to have been anticipated by reason only of the
communication of the invention to a department of the State
or to any person authorized by the Minister to investigate
the invention or its merits or of anything done by any person
whomsoever in consequence of such a communication for
the purpose of the investigation.
41 Co-ownership of patents
(1) Where a patent is granted to two or more persons,
each of those persons shall, unless an agreement to the
contrary is in force, be entitled to an equal undivided share
in the patent.
(2) Subject to this section, where two or more persons are
registered as patentees then, unless an agreement to the
contrary is in force, each of those persons shall be entitled,
by himself or his agents, to make, use, exercise and vend the
patented invention for his own benefit without accounting to
the other or others.
(3) Subject to subsections (6), (7) and (8) and to any
agreement for the time being in force, a licence under a
patent shall not be granted and a share in a patent shall not
be assigned except with the consent of all persons, other
than the licenser or assignor, who are registered as patentees.
(4) Where a patented article is sold by one of two or more
persons registered as patentees, the purchaser and any
person claiming through him shall in respect of such article
be entitled to deal with it in the same manner as if it had
been sold by a sole patentee.
(5) Subject to this section, the rules of law applicable to
the ownership and devolution of movable property generally
shall apply in relation to patents as they apply in relation to
other incorporeal rights.
(6) Where two or more persons are registered as patentees, the Registrar may, upon application made to him in the
prescribed manner by any of those persons, give such
directions in accordance with the application as to the sale
or lease of the patent or any interest therein, the grant of
licences under the patent or the exercise of any right under
subsections (1) to (5) in relation thereto as he thinks fit.
(7) If any person registered as patentee fails to execute
any instrument or to do any other thing required for the
carrying out of any direction given under this section within
fourteen days after being requested in writing so to do by
any of the other persons so registered, the Registrar may,
upon application made to him in the prescribed manner by
any such other person, give directions empowering any
person to execute that instrument or to do that thing in the
name and on behalf of the person in default.
(8) Before giving directions in pursuance of an application under subsection (6) or (7), the Registrar shall give an
opportunity to be heard—
(a) in the case of an application under subsection (6), to
the other person or persons registered as patentees;
(b) in the case of an application under subsection (7), to
the person in default.
(9) An appeal shall lie from any decision of the Registrar
under this section.
(10) No directions shall be given under this section so as
to affect the mutual rights or obligations of trustees or of the
legal representatives of a deceased person or their rights or
obligations as such.
42 Disputes as to inventions made by joint
inventors
(1) Where a dispute arises between two or more persons
as to the rights of the parties in respect of an invention made
by those persons jointly or in respect of any patent to be
granted in respect thereof, the Registrar may, upon application made to him in the prescribed manner, and after giving
to each of the parties an opportunity to be heard, determine
the matter in dispute and make such orders for giving effect
to his decision as he considers expedient.
(2) Upon an application made to him under subsection
(1), the Registrar may, unless satisfied that one of the parties
is entitled to the exclusion of the other or others to the
benefit of the invention in respect of which the application is
made, by order provide for the apportionment, between the
parties or two or more of the parties, of the invention and of
any patent to be granted in respect thereof in such manner as
the Registrar considers just.
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