HC Deb 25 July 1988 vol 138 cc223-4

Amendments made: No. 294, in page 194, line 15 at end insert— '4A. In section 130(1) of the Patents Act 1977 (interpretation), in the definition of "search fee", for "section 17 above" substitute "section 17(1) above".'.

No. 151, in page 194, line 26 at end insert— '(2A) After subsection (2) insert— (2A) Notice of the application shall be published by the comptroller in the prescribed manner.".'.

No. 152, in page 194, line 30, leave out from beginning to 'does' and insert This amendment'.

No. 153, in page 194, line 34, at end insert— '(4) Omit subsections (5) to (9) (effect of order for restoration).

5A. After that section insert—

"Effect of order for restoration of patent

28A.—(1) The effect of an order for the restoration of a patent is as follows.

(2) Anything done under or in relation to the patent during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the patent had not expired shall be treated as an infringement—

  1. (a) if done at a time when it was possible for the patent to be renewed under section 25(4); or
    2. 224
  2. (b) if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for the patent to be so renewed, and before publication of notice of the application for restoration, a person—

  1. (a) began in good faith to do an act which would have constituted an infringement of the patent if it had not expired, or
  2. (b) made in good faith effective and serious preparations to do such an act,
he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the patent; but this right does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

  1. (a) authorise the doing of that act by any partners of his for the time being in that business, and
  2. (b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where a product is disposed of to another in exercise of the rights conferred by subsection (4) or (5), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.

(7) The above provisions apply in relation to the use of a patent for the services of the Crown as they apply in relation to infringement of the patent.".'.

No. 295, in page 194, line 34, at end insert— '5B. In consequence of the above amendments—

  1. (a) in section 60(6)(b) of the Patents Act 1977, for "section 28(6)" substitute "section 28A(4) or (5)"; and
  2. (b) in sections 77(5), 78(6) and 80(4) of that Act, for the words from "section 28(6)" to the end substitute "section 28A(4) and (5) above, and subsections (6) and (7) of that section shall apply accordingly.".'.

No. 296, in page 195, line 3, at end insert— '6A. In section 74(6) (meaning of "entitlement proceedings"), for "section 37(l)(a) above" substitute "section 37(1) above".'.

No. 154, in page 196, line 37, at end insert—

'Right to continue use begun before priority date

10A. For section 64 of the Patents Act 1977 (right to continue use begun before priority date) substitute—

"Right to continue use begun before priority date

64.—(1) Where a patent is granted for an invention, a person who in the United Kingdom before the priority date of the invention—

  1. (a)does in good faith an act which would constitute an infringement of the patent if it were in force, or
  2. (b)makes in good faith effective and serious preparations to do such an act,
has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the grant of the patent; but this right does not extend to granting a licence to another person to do the act.

(2) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (1) may—

  1. (a) authorise the doing of that act by any partners of his for the time being in that business, and
  2. (b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(3) Where a product is disposed of to another in exercise of the rights conferred by subsection (1) or (2), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.".'.

No. 249, in page 196, line 37, at end insert—