Intellectual
Property Rights
Patents
Act, 1970
CHAPTER XXIII: MISCELLANEOUS
140. Avoidance of certain restrictive conditions
(1) It shall not be lawful to
insert-
(i) in any contract for or in
relation to the sale or lease of a patented article or an article made
by a patented process; or
(ii) in a licence to manufacture
or use a patented article; or
(iii) in a licence to work any
process protected by a patent, a condition the effect of which may be-
(a) to require the purchaser,
lessee, or licensee to acquire from the vendor, lessor, or licensor, or
his nominees, or to prohibit him from acquiring or to restrict in any
manner or to any extent his right to acquire from any person or to prohibit
him from acquiring except from the vendor, lessor, or licensor or his
nominees, any article other than the patented article or an article other
than that made by the patented process; or
(b) to prohibit the purchaser,
lessee or licensee from using, or to restrict in any manner or to any
extent the right of the purchaser, lessee or licensee, to use an article
other than the patented article or an article other than that made by
the patented process, which is not supplied by the vendor, lessor or licensor
or his nominee; or
(c) to prohibit the purchaser,
lessee or licensee from using or to restrict in any manner or to any extent
the right of the purchaser, lessee or licensee to use any process other
than the patented process,
and any such condition shall be
void.
(2) A
condition of the nature referred to in clause (a) or clause (b) or clause
(c) of sub-section (1) shall not cease to be a condition falling within
that sub-+section merely by reason of the fact that the agreement containing
it has been entered into separately, whether before or after the contract
relating to the sale, lease or licence of the patented article or process.
(3) In proceedings against any
person for the 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 and containing a condition declared unlawful by this section:
PROVIDED that this sub-section
shall not apply if the plaintiff is not a party to the contract and proves
to the satisfaction of the court that the restrictive condition was inserted
in the contract without his knowledge and consent, express or implied.
(4) Nothing in this section shall-
(a) affect a condition in a contract
by which a person is prohibited from selling goods other than those of
a particular person;
(b) validate a contract which,
but for this section, would be invalid;
(c) affect a condition in a contract
for the lease of, or licence to use, a patented article, by which the
lessor or licensor reserves to himself or his nominee the right to supply
such new parts of the patented article as may be required or to put or
keep it in repair.
(5) The
provisions of this section shall also apply to contracts made before the
commencement of this Act if and in so far as any restrictive conditions
declared unlawful by this section continue in force after the expiration
of one year from such commencement.
141.
Determination of certain contracts
(1) Any
contract for the sale or lease of a patented article or for licence to
manufacture, use or work a patented article or process, or relating to
any such sale, lease or licence, whether made before or after the commencement
to this Act, may at any time after the patent or all the patents by which
the article or process was protected at the time of the making of the
contract has or have ceased to be in force, and notwithstanding anything
to the contrary in the contract or in any other contract, be determined
by the purchaser, lessee, or licensee, as the case may be, of the patent
on giving three months' notice in writing to the other party.
(2) The
provisions of this section shall be without prejudice to any right of
determining a contract exercisable apart from this section.
142. Fees
(1) There
shall be paid in respect of the grant of patents and applications therefor,
and in respect of other matters in relation to the grants of patents under
this Act, such fees as may be prescribed by the Central Government.
(2) Where a fee is payable in
respect of the doing of an act by the Controller, the Controller shall
not do that act until the fee has been paid.
(3) Where a fee is payable in
respect of the filing of a document at the patent office, the document
shall be deemed not to have been filed at the office until the fees has
been paid.
(4) Where
a principal patent is granted later than two years from the date of filing
of the complete specification, the fees which have become due in the meantime
may be paid within a term of three months from the date of the recording
of the patent in the register.
143. Restrictions upon publication of specifications
Subject
to the provisions of Chapter VII, an application for a patent, and any
specification filed in pursuance thereof, shall not, except with the consent
of the applicant, be published by the Controller or be open to public
inspection at any time before the date of advertisement of acceptance
of the application in pursuance of section 23.
144. Reports of examiners to be confidential
The reports
of examiners to the Controller under this Act shall not be open to public
inspection or be published by the Controller; and such reports shall not
be liable to production or inspection in any legal proceeding unless the
court certifies that the production or inspection is desirable in the
interest of justice, and ought to be allowed.
145. Publication of patented inventions
The Controller
shall issue periodically a publication of patented inventions containing
such information as the Central Government may direct.
146. Power of Controller to call for information from patentees
(1) The
Controller may, at any time during the continuance of the patent, by notice
in writing, require a patentee or a licensee, exclusive or otherwise,
to furnish to him within two months from the date of such notice or within
such further time as the Controller may allow, such information or such
periodical statements as to the extent to which the patented invention
has been commercially worked in India as may be specified in the notice.
(2) Without prejudice to the provisions
of sub-section (1), every patentee and every licensee (whether exclusive
or otherwise) shall furnish in such manner and form and at such intervals
(not being less than six months) as may be prescribed statements as to
the extent to which the patented invention has been worked on a commercial
scale in India.
(3) The
Controller may publish the information received by him under sub-section
(1) or sub-section (2) in such manner as may be prescribed.
147. Evidence of entries, documents, etc.
(1) A certificate
purporting to be signed by the Controller as to any entry, matter or thing
which he is authorised by this Act or any rules made thereunder to make
or do, shall be prima facie evidence of the entry having been made and
of the contents thereof and of the matter or thing having been done or
omitted to be done.
(2) A copy of any entry in any
register or of any document kept in the patent office or of any patent,
or an extract from any such register or document, purporting to be certified
by the Controller and sealed with the seal of the patent office shall
be admitted in evidence in all courts, and in all proceedings, without
further proof or production of the original.
(3) The
Controller or any other officer of the patent office shall not, in any
legal proceedings to which he is not a party, be compellable to produce
the register or any other document in his custody, the contents of which
can be proved by the production of a certified copy issued under this
Act or to appear as a witness to prove the matters therein recorded unless
by order of the court made for special causes.
148. Declaration by infant, lunatic, etc.
(1) If
any person is, by reason of minority, lunacy or other disability, incapable
of making any statement or doing anything required or permitted by or
under this Act, the lawful guardian, committee or manager (if any) of
the person subject to the disability, or if there be none, any person
appointed by any court possessing jurisdiction in respect of his property,
may make such statement or a statement as nearly corresponding thereto
as circumstances permit, and do such thing in the name and on behalf of
the person subject to the disability.
(2) An
appointment may be made by the court for the purposes of this section
upon the petition of any person acting on behalf of the person subject
to the disability or of any person interested in the making of the statement
or the doing of the thing.
149. Service of notices, etc. by post
Any notice
required or authorised to be given by or under this Act, and any application
or other document so authorised or required to be made or filed, may be
given, made or filed by post.
150. Security for-costs
If any
party by whom notice of any opposition is given under this Act or by whom
application is made to the Controller for the grant of a licence under
a patent neither resides nor carries on business in India, the Controller
may require him to give security for the cost of the proceedings, and
in default of such security being given may treat the opposition or application
as abandoned.
151. Transmission of orders of courts to Controller
(1) Every
order of the High Court on a petition for revocation, including orders
granting certificates of validity of any claim, shall be transmitted by
the High Court to the Controller who shall cause an entry thereof and
reference thereto to be made in the register.
(2) Where in any suit for infringement
of a patent or in any suit under section 106 the validity of any claim
or a specification is contested and that claim is found by the court to
be valid or not valid, as the case may be, the court shall transmit a
copy of its judgment and decree to the Controller who shall on receipt
thereof cause an entry in relation to such proceeding to be made in the
prescribed manner in a supplemental record.
(3) The
provisions of sub-sections (1) and (2) shall also apply to the court to
which appeals are preferred against decisions of the courts referred to
in those sub-sections.
152. Transmission of copies of specifications, etc. and inspection
thereof
Copies
of all such specifications, drawings and amendments left at the patent
office as become open to public inspection under the provisions of this
Act, shall be transmitted, as soon as may be, after the printed copies
thereof are available, to such authorities as the Central, Government
may appoint in this behalf, and shall be open to the inspection of any
person at all reasonable times at places to be specified by those authorities
and with the approval of the Central Government.
153. Information relating to patents
A person
making a request to the Controller in the prescribed manner for information
relating to any such matters as may be prescribed as respects any patent
specified in the request or as respects any application for a patent so
specified shall be entitled, subject to the payment of the prescribed
fee to have information supplied to him accordingly.
154. Loss or destruction of patents
If a patent
is lost or destroyed, or its non-production is accounted for to the satisfaction
of the Controller, the Controller may at any time, on application made
in the prescribed manner and on payment of the prescribed fee, cause a
duplicate thereof to be sealed and delivered to the applicant.
155. Reports of Controller to be placed before Parliament
The Central
Government shall cause to be placed before both Houses of Parliament once
a year a report respecting the execution of this Act by or under the Controller.
156. Patent to bind government
Subject
to the other provisions contained in this Act, a patent shall have to
all intents the like effect as against government as it has against any
person.
157. Right of government to sell or use forfeited articles
Nothing
in this Act shall affect the power of the government or of any person
deriving title directly or indirectly from the government to sell or use
any articles forfeited under any law for the time being in force.
2[157A. Protection of security of India
Notwithstanding
anything contained in this Act, the Central Government shall-
(a) not disclose any information
relating to any patentable invention or any application relating to the
grant of patent under this Act, which it considers prejudicial to the
interest of security of India;
(b) take action including the
revocation of any patent which it considers necessary in the interest
of security of India:
PROVIDED that the Central Government
shall, before taking any action under this clause, issue a notification
in the Official Gazette declaring its intention to take such action.
Explanation : For the purposes
of this section, the expression "security of India" means any
action necessary for the security of India which-
(i) relates to fissionable materials
or the materials from which they are derived; or
(ii) relates to the traffic in
arms, ammunition and implements of war and to such traffic in other goods
and materials as is carried on directly or indirectly for the purpose
of supplying a military establishment; or
(iii)
is taken in time of war or other emergency in matter of international
relations.]
158. Power of High Courts to make rules
The High
Court may make rules consisent with this Act as to the conduct and procedure
in respect of all proceedings before it under this Act.
159. Power of Central Government to make rules
(1) The Central Government ma
by notification on the Official Gazette, make rules for carrying out the
purposes of this Act.
(2) Without prejudice to the generality
of the forgoing power, the Central Government may make rules to provide
for all or any of the following matters, namely,-
(i) the form and manner in which
any application for a patent, any specifications or drawings and any other
application or document may be filed in the patent office;
(ii) the time within which any
act or thing may be done under this Act, including the manner in which
and the time within which any matter may be advertised under this Act;
(iii) the fees which may be payable
under this Act and the manner of payment of such fees;
(iv) the matters in respect of
which the examiner may make a report to the Controller;
(v) the form of request for the
sealing of a patent;
(vi) the form and manner in which
and the time within which any notice may be given under this Act;
(vii) the provisions which may
be inserted in an order for restoration of a patent for the protection
of persons who may have availed themselves of the subject-matter of the
patent after the patent had ceased;
(viii) the establishment of branch
offices of the patent office, and the regulation generally of the business
of the patent office, including its branch offices;
(ix) the maintenance of the register
of patents and the matters to be entered therein;
(x) the matters in respect of
which the Controller shall have powers of a civil court;
(xi) the time when and the manner
in which the register and any other document open to inspection may be
inspected under this Act;
(xii) the qualifications of, and
the preparation of a roll of, scientific advisers for the purpose of section
115;
(xiii) the manner in which any
compensation for acquisition by government of an invention may be paid;
(xiv) the manner in which the
register of patent agents may be maintained; the conduct of qualifying
examinations for patent agents; and matters connected with their practice
and conduct, including the taking of disciplinary proceedings against
patent agents for misconduct;
(xv) the regulation of the making,
printing, publishing and selling of indexes to, and abridgments of specifications
and other documents in the patent office, and the inspection of indexes
and abridgments and other documents;
(xvi) any other matter which has
to be or may be prescribed.
(3) The power to make rules under
this section shall be subject to condition of the rules being made after
previous publication.
160. Rules to be placed before Parliament
Every rule
made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament while it is in session for a total period
of thirty days which may be comprised in one session or in two or more
successive sessions and, if before the expiry of the session immediately
following the session or the successive sessions aforesaid both Houses
agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may
be, so, however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule.
161. Special provisions with respect to certain applications
deemed to have been refused under Act 2 of 1911
(1) Where,
as a result of action taken by the Controller under section 12 of the
Atomic Energy Act, 1948 (29 of 1948) or under section 20 of the Atomic
Energy Act, 1962 (33 of 1962) an application for a patent made before
the commencement of this Act could not be accepted, within the time specified
for the purpose in the Indian Patents, and Designs Act, 1911 (2 of 1911)
(hereafter in this section referred to as the repealed Act), and, consequently,
was deemed to have been refused by reason of sub-section (4) of section
5 of the repealed Act, the application may if the applicant or, if he
is dead his legal representative, makes a request in that behalf to the
Controller in the prescribed manner within three months from the commencement
of this Act, be revived and shall be disposed of as i f it were an application
pending at the commencement of this Act to which the provisions of this
Act apply by reason of sub-section (3) of section 62.
(2) The Controller may, before
proceeding to act upon any such request as is referred to in sub-section
(1), refer the matter to the Central Government for directions as to whether
the invention is one relating to atomic energy and shall act in conformity
with the directions issued by it.
(3) Where in pursuance of any
such application as is referred to in sub-section (1) a patent is granted,
the rights of the patentee shall be subject to such conditions as the
Controller thinks fit to impose for the protection or compensation of
persons who may have begun to avail themselves of, or have taken definite
steps by contract or otherwise to avail themselves of, the patented invention
before the date of advertisement of the acceptance of the complete specification.
(4) A
patent granted in pursuance of any such application as is referred to
in sub-section (1) shall be dated as of the date on which the request
for reviving such application was made under sub-section (1).
162. Repeal of Act 2 of 1911 insofar as it relates to patents
and saving
(1) The
Indian Patents and Designs Act, 1911, in so far as it relates to patents,
is hereby repealed, that is to say the said Act shall be amended in the
manner specified in the schedule.
(2) Notwithstanding the repeal
of the Indian Patents and Designs Act, 1911, insofar as it relates to
patents-
(a) the provisions of section
21A of that Act and of any rules made thereunder shall continue to apply
in relation to any patent granted before the commencement of this Act
in pursuance of that section, and
(b) the renewal fee in respect
of a patent granted under this Act shall be as fixed thereunder.
(3) Save as otherwise provided
in sub-section (2), the provisions of this Act shall apply to any application
for r a patent pending at the commencement of this Act and to any proceedings
consequent thereon and any patent granted in pursuance thereof.
(4) The mention of particular
matters in this section shall not prejudice the general application of
the General Clauses Act, 1897, (10 of 1897) with respect to repeals.
(5) Notwithstanding
anything contained in this Act, any suit for infringement of a patent
or any proceeding for revocation of a patent, pending in any court at
the commencement of this Act, may be continued and disposed of, as if
this Act had not been passed.
163. Amendment of Act 43 of 1958
In sub-section
(1) of section 4 of the Trade and Merchandise Marks Act, 1958, the words
and figures "and the Controller of Patents and Designs for the purposes
of the Indian Patents and Designs Act, 1911" (2 of 1911), shall be
omitted.
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