Intellectual
Property Rights
Patents
Act, 1970
2[CHAPTER IVA: EXCLUSIVE MARKETING RIGHTS
24A. Application for grant of exclusive rights
(1) Notwithstanding
anything contained in sub-section (1) of section 12, the Controller shall
not, under that sub-section, refer an application in respect of a claim
for a patent covered under sub-section (2) of section 5 to an examiner
for making a report till the 31st day of December, 2004 and shall, where
an application for grant of exclusive right to sell or distribute the
article or substance in India has been made in the prescribed form and
manner and on payment of prescribed fee, refer the application for patent,
to an examiner for making a report to him as to whether the invention
is not an invention within the meaning of this Act in terms of section
3 or the invention is an invention for which no patent can be granted
in terms of section 4.
(2) Where
the Controller, on receipt of a report under sub-section (1) and after
such other investigation as he may deem necessary, is satisfied that the
invention is not an invention within the meaning of this Act in terms
of section 3 or the invention is an invention for which no patent can
be granted in terms of section 4, he shall reject the application for
exclusive right to sell or distribute the article or substance.
(3) In
a case where an application for exclusive right to sell or distribute
an article or a substance is not rejected by the Controller on receipt
of a report under sub-section (1) and after such other investigation,
if any, made by him, he may proceed to grant exclusive right to sell or
distribute the article or substance in the manner provided in section
24B.
Explanation:
It is hereby clarified that for the purposes of this section, the exclusive
right to sell or distribute any article or substance under this section
shall not include any, article or substance based on the system of Indian
medicine as defined in clause (e) of sub-section (1) of section 2 of the
Indian Medicine Central Council Act, 1970 (48 of 1970) and where such
article or substance is already in the public domain.
24B. Grant of exclusive rights
(1) Where
a claim for patent covered under sub-section (2) of section 5 has been
made and the applicant has,-
(a) where
an invention has been made whether in India or in a country other than
India and before filing such a claim, filed an application for the same
invention claiming identical article or substance in a convention country
on or after the 1st day of January, 1995 and the patent and the approval
to sell or distribute the article or substance on the basis of appropriate
tests conducted on or after the 1st day of January, 1995, in that country
has been granted on or after the date of making a claim for patent covered
under sub-section (2) of section 5; or
(b) where
an invention has been made in India and before filing such a claim, made
a claim for patent on or after the 1st day of January, 1995 for method
or process of manufacture for that invention relating to identical article
or substance and has been granted in India the patent therefor on or after
the date of making a claim for patent covered under sub-section (2) of
section 5, and has received the approval to sell or distribute the article
or substance from the authority specified in this behalf by the Central
Government, then, he shall have the exclusive right by himself, his agents
or licensees to sell or distribute in India the article or the substance
on and from the date of approval granted by the Controller in this behalf
till a period of five years or till the date of grant of patent or the
date of rejection of application for the grant of patent, whichever is
earlier.
(2) Where,
the specifications of an invention relatable to an article or a substance
covered under sub-section (2) of section 5 have been recorded in a document
or the invention has been tried or used, or, the article or the substance
has been sold, by a person, before a claim for a patent of that invention
is made in India or in a convention country, then, the sale or distribution
of the article or substance by such person, after the claim referred to
above is made, shall not be deemed to be an infringement of exclusive
right to sell or distribute under sub-section (1):
PROVIDED
that nothing in this sub-section shall apply in a case where a person
makes or uses an article or a substance with a view to sell or distribute
the same, the details of invention relatable thereto were given by a person
who was holding an exclusive right to sell or distribute the article or
substance.
24C. Compulsory licences
The provisions
in relation to compulsory licences in Chapter XVI shall, subject to the
necessary modifications, apply in relation to an exclusive right to sell
or distribute under section 24B as they apply to, and in relation to,
a right under a patent to sell or distribute and for that purpose the
following modifications shall be deemed to have been made to the provisions
of that Chapter and all their grammatical variations and cognate expressions
shall be construed accordingly, namely,-
(a) throughout
Chapter XVI,-
(i) working
of the invention shall be deemed to be selling or distributing of the
article or substance.
(ii) references
to "Patents" shall be deemed to be references to "right
to sell or distribute";
(iii)
references to "patented article" shall be deemed to be references
to "an article for which exclusive right to sell or distribute has
been granted";
(b) three
years from the date of sealing of a patent in section 84 shall be deemed
to be two years from the date of approval by the Controller for exclusive
right to sell or distribute under section 24B;
(c) the
time which has elapsed since the sealing of a patent under section 85
shall be deemed to be the time which has elapsed since the approval by
the controller for exclusive right to sell c)r distribute under section
24B;
(d) clauses
(d) and (e) of section 90 shall be omitted.
24D. Special provision for selling or distribution
(1) Without
prejudice to the provisions of any other law for the time being in force,
where, at any time after an exclusive right to sell or distribute any
article or substance has been granted under sub-section (1) of section
24B, the Central Government is satisfied that it is necessary or expedient
in public interest to sell or distribute the article or substance by a
person other than a person to whom exclusive right has been granted under
sub-section (1) of section 24B, it may, by itself or through any person
authorised in writing by it in this behalf, sell or distribute the article
or substance.
(2) The
Central Government may, by notification in the Official Gazette and at
any time after an exclusive right to sell or distribute an article or
a substance has been granted, direct, in the public interest and for reasons
to be stated, that the said article or substance shall be sold at a price
determined by an authority specified by it in this behalf.
24E. Suits relating to infringements
All suits
relating to infringement of a right under section 24B shall be dealt with
in the same Manner as if they were suits concerning infringement of patents
under Chapter XVIII
24F. Central Government and its officers not to be liable
The examination
and investigation required under this Chapter shall not be deemed in any
way to warrant the validity of any grant of exclusive right to sell or
distribute, and no liability shall be incurred by the Central Government
or any officer thereof by reason of, or in connection with, any such examination
or investigation or any report or other proceedings consequent thereon.]
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