WORLD TRADE ORGANIZATION
ORGANISATION MONDIALE DU COMMERCE
ORGANIZACIÓN MUNDIAL DEL COMERCIOIP/N/1/MUS/I/1
19 March 2002
(02-1413)
Council for Trade-Related Aspects of
Intellectual Property RightsOriginal:  English/
anglais/
inglés
MAIN DEDICATED INTELLECTUAL PROPERTY
LAWS AND REGULATIONS NOTIFIED UNDER
ARTICLE 63.2 OF THE AGREEMENT
MAURITIUS
The present document reproduces the text1 of the Patents, Industrial Designs and
Trademarks Bill of 2000, as notified by Mauritius under Article 63.2 of the Agreement (see
document IP/N/1/MUS/1).
Conseil des aspects des droits de propriétéintellectuelle qui touchent au commerce
PRINCIPALES LOIS ET REGLEMENTATIONS CONSACREES A LA
PROPRIETE INTELLECTUELLE NOTIFIEES AU TITRE
DE L'ARTICLE 63:2 DE L'ACCORD
MAURICE
Le présent document contient le texte
1 du projet de loi de 2000 sur les brevets, les dessins
et modèles industriels et les marques de fabrique ou de commerce, notifié par Maurice au titre de
l'article 63:2 de l'Accord (voir le document IP/N/1/MUS/1).
Consejo de los Aspectos de los Derechos de Propiedad
Intelectual relacionados con el Comercio
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO
MAURICIO
En el presente documento se reproduce el texto1 del proyecto de Ley de Patentes, de
Dibujos y Modelos Industriales y de Marcas de Fábrica o de Comercio, de 2000, que Mauricio
notificó de conformidad con lo dispuesto en el párrafo 2 del artículo 63 del Acuerdo (véase eldocumento IP/N/1/MUS/1).
                                                     
1 In English only./En anglais seulement./En inglés solamente.IP/N/1/MUS/I/1
Page 2
25.10.2000-11.00 A.M.
THE  PATENTS, INDUSTRIAL DESIGNS AND TRADEMARKS  BILL
(No. ..... of  2000)
Explanatory Memorandum
The main object of this Bill is to provide for the protection of Patents, Industrial
Designs and Trademarks.
PATENTS
Clause 3 of the Bill defines what is a patent and what is an invention for
the purposes of this Bill, mentioning the two existing categories of inventions,namely product inventions and process inventions. Product inventions exist intangible form, e.g., machines, equipment, devices, etc., and process inventionsgenerally consist of a series of steps for producing a product or a desired result,e.g., artificially colouring citrus fruits. Clause 3 also lists subject matter that isexcluded from patent protection, namely, discoveries, instructions to the humanmind which cannot be patented, methods of treatment and diagnostic methods,but not products for applying such methods (e.g., medical equipment)
Clause 4 of the Bill sets out and defines the three basic conditions for
patentability of an invention, namely, novelty, inventive step and industrialapplicability.  It deals with the notion of nov elty, providing that an invention is new
if it is not anticipated by prior art, that is to say, if it does not form part of the stateof the art.  Subclause (3) defines prior art to be the sum of knowledge to be takeninto account in evaluating the novelty of an invention and the inventive step at thedecisive moment which is the filing date of the patent application or, where
applicable the priority date of the application.  The subclause provides for arequirement of universal novelty so far as publications in tangible form and so faras other forms of disclosure are concerned.
Clause 5 of the Bill provides for the situation in which two or more persons
have made the same invention independently of each other, and also deals withthe right to a patent for an invention made by an employee in execution of anemployment contract. Subclause 5(6) establishes the inventor's moral right to benamed as such in the patent and ensures that recognition is given to him.
Clause 6 of the Bill deals with the re quirements of a patent application and
would need to be supplemented by Regulations.IP/N/1/MUS/I/1
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Clause 7 of the Bill deals with the unity of invention and division of
application. Subclause (1) is designed to prevent an applicant from including in asingle application (and paying fees on the basis of one invention) claims relatingto two or more different inventions; each invention must be the subject of aseparate application.
Subclauses (2) and (3) allows the applicant, up to the time the application is
in order for grant, to amend or divide the application on his own initiative.
The purpose of the requirement of unity of invention under subclause (1) is
to facilitate the administration and the search of applications and not to establisha standard or measure of the suitability of  a subject-matter fo r patent protection.
Accordingly, the failure to comply with the requirement of unity of inventioncannot be a ground for the invalidation of the patent.  Failure to comply with therequirement can only be redressed at the application stage.  At that stage, the
sanction for non-compliance is the refusal of the grant of a patent unless the
application is restricted through the elimination of certain claimed subject matter.The subject matter so eliminated could then be included in one or more"divisional" applications.
Clause 8 of the Bill deals with the form in which an applicant, wishing to
avail himself of the priority of an earlier application filed abroad for the sameinvention, must present his claim.
Clause 9 of the Bill makes provisions to enable the Controller of Industrial
Property to request and obtain, from the applicant, information and documentsconcerning applications filed or grants made in other countries in respect of thesame or essentially the same invention.  Such information could, to a largeextent, facilitate the processing of the patent application by the Controller.Having received the information requested under subclause (1), the Controllercan select from among the foreign applications or grants, which one interests itmost and apply the provisions of subclause (2) in respect thereof.
Clause 10 of the Bill deals with the filing date to be accorded to the
application and the examination.  The requirements imposed in according a filingdate are not stringent since it is important that a filing date be fixed as soon aspossible (the filing date being the decisive moment for evaluating the novelty ofthe purported invention and also the basis for a claim of priority for subsequentapplications filed in respect of the same invention in a foreign country.
Clause 11 of the Bill deals with the grant of patents and changes in
patents. It provides that patents are granted after the positive result of anIP/N/1/MUS/I/1
Page 4
examination as to form, without any provision for an examination as to substance
or the possibility of an opposition (w hich could entail th e consideration of
technically complicated issues).  Invalidation proceedings may be instituted asprovided for in clause 16.
This clause also provides for the publication of a reference to the grant of
a patent, and making copies thereof available to the public, as an economicalmeans of giving notice of the existence of the patent and making available to thepublic the technological information it contains.  The patent is recorded in thepatent register by inserting a copy of the patent in the register.
The certificate of grant issued to the applicant under clause 11 (2)(b) is the
legal document establishing his ownership of the patent.
Subclause (3) establishes the right of the owner of a patent to request the
Controller to make changes in the text or drawings of the patent in order to limit
the extent of protection conferred by the patent.  A change limiting the extent of
protection might be sought by the owner of the patent following the discovery byhim of prior art, previously unknown to him, that affected the validity of the scopeof protection granted by his patent.  However, no change may be made to apatent if the change would result in the disclosure contained in the patent goingbeyond the disclosure contained in the application as filed.  New matter mighthave the effect of extending the protection conferred by the patent to the potentialdetriment of competitors who may have relied on the extent of protectionindicated in the patent as published.
Clause 12 of the Bill deals with the effect of the grant of a patent, namely
that the patented invention may not be exploited in the country by persons otherthan the owner of the patent, unless the owner agrees to such exploitation.
This clause provides for the right to institute proceedings against any
person exploiting the patented invention in the country without the owner'sagreement and also lists the limitations.
  The first limitation contained in this clause is the so called "exhaustion" of
patent rights.  Under that principle, once a patent protected article (a patentedproduct or a product made by a patented process) has been lawfully put on themarket, the patent owner's rights in respect of that product are exhausted.  Thislimitation assures free circulation of products in the country.  The secondlimitation is aimed at avoiding a situation in which the exercise of the exclusiveright might be prejudicial to the public interest in maintaining free movement ofvessels, aircraft, etc.  The third limitation concerns acts done only forexperimental purposes, which implies that such acts must be for non-commercialpurposes.  The fourth limitation recognizes the so-called "prior user's" right.  Thisright is established by "good faith" prior use or serious preparations for such use,IP/N/1/MUS/I/1
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within the territory of Mauritius.
Clause 13  deals with the most important limitation placed upon the rights
under the patent, i.e., the duration of the patent.  The duration is computed fromthe filing date of the application but protec tion commences from the date of grant.
Subclause (2) provides for the payment of annual fees to maintain the applicationor patent, starting from the first anniversary of the filing date of the applicationand states the consequences of failure to pay annual fees. A six-month period ofgrace for the payment of annual fees is provided for.
Clause 14 of the Bill introduces a measure which allows the exploitation of a
patented invention, without the agreement of the owner of the patent, by theGovernment or by third persons authorized by the Government, in the public
interest or to remedy an anti-competitive practice.
Clause 15 of the Bill introduces a measure which allows the issuance of
non-voluntary licenses if certain condit ions are fulfilled and if the patented
invention has not been sufficiently exploited by local working or importation.
Clause  16 of the Bill provides a procedure for the possibility of invalidating
patents not satisfying specific fundamental requirements of the law.  It providesfor a judicial procedure for the invalidation of the patent since it is preferable toentrust this delicate task to an authority independent of the one that granted thepatent.
Subclause (1) states that only an "interested person" may request
invalidation of a patent.  In general terms, one could define an interested personas being any person who, because of the existence of the patent which does notsatisfy the prescribed requirements, is hampered in the exploitation of theinvention.  A public authority, entrusted, for example, with the regulation of tradeor consumer protection, could perhaps also qualify as an "interested person" onbehalf of the public.  However, in any given case, the court will have to determinewhether a person is "interested" within the meaning of this provision.
The request to the court to invalidate a patent may be made in
proceedings instituted for that purpose or as a counterclaim in a defense to aninfringement suit initiated by the owner of the patent.
Subclause (3) states that the grounds for invalidation may be proved in
respect of only some of the claims or some parts of a claim.  When invalidation isdeclared, it has retroactive effect since the patent should not have been granted(such grant being contrary to the law) or should not have been granted to theperson to whom it was granted.  The consequences of the retroactive characterIP/N/1/MUS/I/1
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of invalidation will be governed by the general rules of law of the country.
Subclause (4) states that when the decision pronouncing invalidation
becomes final, in other words, when all remedies of appeal have been exhaustedor can no longer be availed of, the public should be informed as soon as possibleof the termination (whether total or partial) of the rights conferred by the patent.
Clause 17 of the Bill makes provisions concerning the filing of applications
under the Patent Cooperation Treaty.
PART II
INDUSTRIAL DESIGNS
Clause 18 defines an industrial design.  Everything which gives rise, in the
appearance of a product, to an aesthetic impression (i.e., an impression receivedby the sense of sight) can be an industrial design.  This would also include so-called "textile designs."  The definition also comprises external effects resultingfrom the use of certain processes such as oxydization, enamelling, etc.  Aconcrete aspect must always be involved; a manufacturing method is notprotected as an industrial design.
Subclause (2) excludes, from protection, elements in a design which,
although within the definition of subclause (1), are in the design only for thepurpose of obtaining a technical result and to the extent that it thus cannot beclaimed that the elements are the result of personal creativity.  Such elementsare within the domain of patent law and are outside the protection conferredunder industrial design law.  An example of such an element, in the design of anew ballpoint pen, would be the part, the purpose of which is to expose andretract the writing tip.  Here, the ballpoint pen as a whole would be protected asan industrial design, but the mechanism for exposing or retracting the writing tipwould not be so protected;  it may be the subject of a patent.
Clause  19 lists the conditions to be met in order for an industrial design to
be registrable. Firstly, an industrial design must be new, but  allows, a "graceperiod" of twelve months for filing an application after the public disclosure of anindustrial design. Designs contrary to morality (e.g., obscene forms) or publicorder (e.g., the emblem of a public authority) are excluded from protection.
Clause 20  makes the provisions of this Act which apply to patents
applicable, with due alterations, to industrial designs with regard to  the right toregistration of an industrial design,  industrial designs created jointly by two orIP/N/1/MUS/I/1
Page 7
more persons,  the right to assign a registered industrial design  and the right of
the creator of an industrial design to be named in the registration.
Clause 21 of the Bill deals with the requirements of an application for
registration of an industrial design and is to be supplemented by theimplementing Regulations.
Subclause (4) does not impose a limit on the maximum number of
industrial designs that may be the subject of an application.  However, theindustrial designs that may be included in the same application are restricted tothose designs which belong to the same class of the International Classificationor to the same set or composition of articles.
Subclause (5)  introduces the possibly of keeping a registered design
secret for a period not exceeding 12 months.  This responds to the need of some
sectors of industry to defer the publication of their designs before the
corresponding products reach the market.  Particularly in the field of fashion, butalso in other sectors, letting competitors know in advance the general line of adesign or designs could jeopardize the success of a commercial operation.Deferment of publication for a limited period attempts to strike a balance betweenthe need for secrecy and the need for legal certainty and transparency.Deferment of publication must be requested at the moment of filing theapplication, since the registration procedure is too short to permit that the requestbe filed at a later date.
Clause  22 of the Bill  provides only for a formal, but not a substantive (in
particular as regards novelty), examination of industrial design applications.  Asubstantive examination would require a large collection of industrial designspublished anywhere in the world and could not be exhaustive.  A systemproviding only for formal examination is considered appropriate, since registeredindustrial designs may be subject to proceedings for their invalidation whereappropriate.
This clause deals with the filing date to be accorded to the application and
is similar, in all material respects, to the provisions of clause 10 (1) which appliesto patents. It also prescribes the process for examination of the application.Under subclause (3) the application, if found in order, is registered and publishedand a certificate issued to the applicant.
Subclause (4) provides that the registered owner, in case of deferment of
publication, enjoys a right which can be enforced against infringers.  However,since infringers cannot be considered to be aware of the design, in view of itssecret nature, the action for enforcement of the rights is, as long as nopublication has taken place, subject to a prior communication to the allegedinfringer of the whole file, including the representation of the design.  This doesnot imply that the information should also be brought to the knowledge of thepublic at large.IP/N/1/MUS/I/1
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Clause 23 deals with the rights conferred by the registration of an
industrial design, which are similar, in all material respects, to those of clause 12concerning patents  Subclause (3) applies the limitation with regard to the"exhaustion of rights" to registered industrial designs.
Once registered, an industrial design is protected for a period of five years.
The duration is computed from the filing date of the application, but protectioncommences from the date of registration. The owner of the registered industrialdesign, by paying the fee prescribed can renew the registration for two furtherconsecutive periods of five years each.
Clause 24 makes provisions which are similar, in all material respects, to
those relating to patents and establish the possibility of invalidating registered
industrial designs which do not satisfy the specific fundamental requirements of
the law.
PART III
MARKS, COLLECTIVE MARKS, TRADE NAMES
AND ACTS OF UNFAIR COMPETITION
Clause 25 provides definitions to distinguish between three categories of
marks -  trademarks, service marks and collective marks.
A mark belonging to any of these categories is always a visible distinctive
sign, serving to distinguish the goods or services of one or more enterprises fromthe goods or services of another enterprise.  Within this function of distinguishinggoods or services, marks of the three categories have different objectives.
The "trademark" is the classic mark, serving to distinguish the goods of
one enterprise (or of several enterprises working under license from the owner ofthe mark) from the goods of other enterprises.  The goods may be manufacturedproducts or natural products,  they may be produced or merely sold by the ownerof the mark or may be distributed by him without charge, as in the case ofwrappings or advertising material.
The "service mark" is the fruit of a more modern notion.  This mark fulfills
the same function of distinguishing but it distinguishes the services of anenterprise (or of licensed enterprises), and not the goods, from those of otherenterprises.  These services may be of almost any kind, e.g., publicity, transport,insurance, laundry, treatment of materials.
The "collective mark" serves also to distinguish goods or services.
However, it does not distinguish the goods or services of an individual enterprisefrom those of other enterprises, but goods or services which are produced bydifferent enterprises but have a common origin or other common characteristics.The registered owner of such a mark can be one of those enterprises but mayIP/N/1/MUS/I/1
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also be a third party - generally a cooperative or an association of enterprises or
a public institute - charged with controlling the use of the mark.  A collective markmust be designated as such when an application is filed for its registration.  Thepurpose of this is to distinguish collective marks from trademarks and servicemarks in order to process and register them accordingly.
It would be possible to provide for the protection of "certification marks"
either instead of or in addition to collective marks.  In this context, it is understoodthat the collective mark is used by members of an association, or group or of anentity, whereas the certification mark is used by persons or entities other than theowner of the mark and guarantees a particular characteristic or quality of thegoods or services for which it is used.
Clause  26 of the Bill makes it clear that the statutory exclusive right to a
mark is secured by registration obtained through fulfillment of the conditions for
registration contained in this Act. This sets out the criteria for registrability bylisting circumstances under which a mark cannot be validly registered andmentions the essential requirement for registration - that a mark must be capableof distinguishing the applicant's goods or services from those of others.  A markthat is only descriptive would not satisfy this requirement.
Subclause (2)(b) prohibits marks which are contrary to public order or
morality (e.g., obscene pictures or words) and subclause (2)(c), marks that arelikely to mislead consumers or trade circles as regards the source or othercharacteristics of the goods or services concerned.  For example, a component inthe mark may suggest that the goods concerned have a particular country oforigin, whereas, in fact, the goods emanate from a different country;  thecomponent may suggest that the goods are made of natural products (e.g.,cotton) whereas they are made of synthetic material.
Subclause (2)(e) excludes marks which, in effect, reproduce well-known
marks belonging to other persons.  There would undoubtedly be confusion in theminds of the public if such marks were registered and used by persons who werenot their owners.  By excluding, subject to the conditions set out in thissubclause, the registration of marks for goods and services other than thosesimilar or identical to those for which the well-known mark has gained itsreputation, the provisions seek to prevent the dilution of the reputation of the well-known mark and to prevent damage to the interests of its owner.
Subclause (2)(f) provides for the protection of third-party prior rights on the
register.  It is mandatory for an application to be refused, in opposition orinvalidation proceedings, if the mark is identical to, or confusingly similar to, amark already recorded on the register in the name of a different person in respectof the same or closely related goods or services.IP/N/1/MUS/I/1
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Clause 27 deals with the requirement of an application for registration of a
mark and is to be supplemented by the implementing Regulations.  Theinternational classification mentioned in subclause (1) is the classificationestablished by the Nice Agreement Concerning the International Classification ofGoods and Services for the Purposes of the Registration of Marks.  Thisclassification is applied in an ever-growing number of countries and ensuresconsistency of treatment in classification matters. This system is in conformitywith the modern trend and minimizes the work without any loss of fees.
Clause 28 provides for a procedure under which, after the positive result of
an examination for compliance with the requirements of Section 26(2) (a) to (e),applications are advertised under subclause (2)(a) so that interested personsmay file opposition to the registration.  Oppositions are decided upon by the
Controller, and the registration effected or refused as the case may be.  The
examination procedure set out in this section is relatively simple since anexamination of applications, for compliance with the requirements referred toabove, can be easily performed.  To give the Controller the more onerous task ofexamining applications for compliance with the requirements of Section 26(2)(f),as well, would require the Controller to carry out a search amongst its records ofregistered marks and, if conflicting marks are found, to notify the applicant ofparticulars of those marks as objections to the registration of the mark sought tobe registered.  Under the procedure set out in this section, such objections canbe raised by any interested person in opposition proceedings, undersubclause (2)(b), or, after registration, in invalidation proceedings under clause30.
Subclause (6) requires the Controller, in considering the merits of the
case, to hear the parties if either or both wish to be heard.  In view of theimportance of the decision regarding an opposition it would be undesirable for thedecision to be taken only on the basis of the written submissions of the partiesparticularly if either or both parties wish to be heard.
Clause  29 establishes the exclusive right that registration of a mark
confers upon its owner and provides for the right to institute proceedings againstany person who infringes or threatens to infringe the rights of the owner of aregistered mark as the owner's most important right.  This right, where confusioncould arise in the public, extends to the use of a mark which, though not identicalto the registered mark or not used in relation to the same goods or services, issimilar to the registered mark and is used in relation to goods or services similaror related to those for which the mark was registered.
Subclause (3) applies the "exhaustion" of rights principle to registered
marks.IP/N/1/MUS/I/1
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This clause also provides for duration. Once registered, a mark is protected for a
period of ten years. Unlike patents and industrial designs, marks may beprotected indefinitely for consecutive ten-year periods provided that the ownerpays the renewal fee, as required.
Clause 30 makes provisions similar in all material respects to those relating
to patents and industrial designs for invalidating registered marks which do notsatisfy the specific fundamental requirements of the law.
Clause  31 makes provisions relating to marks applicable to collective
marks subject to the special provisions, set out in subclauses (2) to (3), that applyonly to collective marks.
Subclause (2) -  The designation of a collective mark as such, in an
application for its registration, enables it to be distinguished from a trademark orservice mark The requirement that an application for registration of a collectivemark be accompanied by a copy of the regulations governing its use and thatchanges in the said regulations be notified to the Controller ensures that theController has on record, and available to the public, information on theconditions under which the collective mark can be used.
Subclause (4) provides for additional grounds upon which collective marks
can be invalidated.
Clause 32 aims at protecting consumers by ensuring effective quality
control when marks are used under license.
Clause 33 deals with the protection of trade names. A trade name is a
name or designation identifying and distinguishing an enterprise.  It may consistof the name of the owner of the enterprise or of his pseudonym, or of an inventedname, or of an abbreviation, or of a description of the enterprise or of any otherdesignation.  The choice of a trade name is more restricted than that of a mark:many of the examples of types of marks, such as devices, reliefs and labels,cannot be used as a trade name because the latter must be a name ordesignation.
Subclause (2) provides for the protection of trade names independently of
registration, even if such registration is otherwise mandatory under other laws orregulations of the country.  Such laws and regulations would probably provide forsanctions for failure to register a trade name.  Such sanctions could not,however, consist of a denial of protection of the unregistered trade name againstacts likely to cause confusion as provided in this Act.  Protection of this kind isclearly in the interest of the public.
Subclause (3) specifies what, in particular, constitutes an unlawful act
against which trade names are protected, i.e., any subsequent use by a thirdIP/N/1/MUS/I/1
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party of the name itself, whether as a trade name or as a mark, and any such use
of a similar trade name or mark, if likely to mislead the public.  A trade namedoes not have to be distinctive;  it can consist of a very common surname or of adescription of the enterprise.  In such  cases, the same surname or description
may be used by others, provided the likelihood of confusion to the public isavoided.
PART IV
GENERAL PROVISIONS
Clause 34 provides that changes in ownership in respect of patents and
registrations of industrial designs and marks, or applications therefor, must be in
writing and must be submitted to the Controller as recording ensures that the
Controller has on record, and available to the public, particulars regardingchanges in ownership.
Collective marks are placed in a special category.  The transfer of
ownership of a collective mark should be allowed less freely than that of anindividual mark because collective marks imply, more than ordinary marks, aguarantee of origin, quality, or other characteristics, so that a change inownership may be more likely to mislead or confuse consumers.  For this reason,changes of ownership in respect of collective marks require the prior approval ofthe Minister responsible for the subject of industrial property.
Since a trade name (unlike a mark) identifies an enterprise, or part of it, a
change in ownership in respect of a trade name is allowed only if it occurstogether with a change of ownership of the enterprise or of the part of it identifiedwith the trade name.
Subclause (5) imposes an obligation on the parties to a license contract to
submit the contract to the Controller for recording purposes and for a publicationof a reference thereto.
Clause 35 ensures that applicants resident outside the territory of Mauritius
are represented by a law practitioner before the Controller.
Clause 36 of the Bill establishes the Controller and makes provisions with
respect to its organisation.
Clause 37 of the Bill provides for publicat ions required under this Act as well
as the keeping of the Registers.
Clause 38 of the Bill gives the Controller powers to correct any obvious
errors, as opposed to making amendments, in any document filed or registeredwith the Controller.IP/N/1/MUS/I/1
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Clause 39 of the Bill provides that the Controller shall give to any party to a
proceeding before him an opportunity of being heard before exercising adverselyto that party any discretionery powers vested in him by this Act or Regulations.
Clause 40 establishes an Industrial Property Review Committee to review
decisions on the Controller in specific circumstances.
Clause 41 of the Bill makes the Supr eme Court the court of jurisdiction
under this Act and for appeals from the decision of the Controller.
Clause 42 (5) and (6) of the Bill establishes the obligation to provide, in
certain defined circumstances, for the reversal of the burden of proof ininfringement proceedings in respect of a patented process for obtaining a product
(subclause (5)), while also providing for the legitimate interests of the defendant
in not disclosing manufacturing and business secrets to be taken into account(subclause (6)).
Subclause (4) requires that, in proceedings concerning infringement of a
patent for a process for obtaining a product, any identical product must, in theabsence of proof to the contrary, be deemed to have been obtained by thepatented process if one of the conditions referred to in subclause (4)(i) and (ii)has been fulfilled.  Subclause (4) thus provides for the reversal of the normalburden of proof, according to which it is the plaintiff who is required to prove thatthe identical product was obtained by the patented process.  The reason for theprovision arises from the difficulty which the owner of a patent for a process facesin endeavouring to prove that the patented process has been used by an allegedinfringer, since that process will usua lly have been employed within the closed
confines of the alleged infringer's plant or factory.  The most ready record of theuse of the patented process will usually be the existence of an identical product.
Accordingly, the defendant is required to show that he has obtained that productby a process other than the patented process.
It is to be noted that subclause (5) provides for the reversal of the burden
of proof in respect of a product identical to the product obtained from a patentedprocess in the case where the product is new or where a substantial likelihoodexists that the product was made by the process and the owner of the patent hasbeen unable through reasonable efforts to determine the process actually used.
Subclause (6) seeks to strike a balance between the interests of the owner
of the patent for a process and the interests of the alleged infringer (defendant).The alleged infringer may well have obtained the identical product in question byusing a different process which he has kept secret.  The Court before which theinfringement proceedings take place is, therefore, required to take into accountIP/N/1/MUS/I/1
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the legitimate interests of the alleged infringer in not disclosing his manufacturing
and business secrets.
Clause 43 of the Bill makes provision for the application of International
treaties.
Clauses 46 and 47 of the Bill contains several transitional provisions. It
expressly provides that patents granted and trademarks registered under theexisting legislation shall remain in force but shall be subject to this Act.
As it may not be possible to foresee all the cases that need to be covered
during the transitional period. Subclause (7) allows the Minister to supplementthe present section, if necessary or desirable, by subsidiary legislation.
           J. K. Cuttaree
......... 2000 Minister of Industry, Commerce   
      and International Trade
-----IP/N/1/MUS/I/1
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THE  PATENTS, INDUSTRIAL DESIGNS AND TRADEMARKS  BILL
(No. ..... of  2000)
ARRANGEMENT OF CLAUSES
Clause
PART  I - PRELIMINARY
1. Short title
2. Interpretation
PART  II - PATENTS
3. Definitions
4. Patentable inventions
5. Right to patent, naming of Inventor
6. Application7. Unity of invention
8. Right of priority
9. Information concerning
corresponding foreign applications
and patents
10. Filing date, examination
11. Grant of patent, changes in patents
12. Rights conferred by patent
13. Duration, annual fees
14. Exploitation by government or
person thereby authorized
15. Non-voluntary licences
16. Invalidation
17. Patent Cooperation Treaty
PART  III - INDUSTRIALDESIGNS
18. Definition of industrial design
19. Registrable industrial design
20. Right to industrial design, naming of
creator
21. Application, right of priority
22. Examination, registration and
publication
23. Rights conferred by registration,
duration, renewal
24. Invalidation
PART  IV - MARKS,COLLECTIVE MARKS, TRADE
NAMES
25. Definition of mark, collective mark
and trade name
26. Acquisition of the exclusive right to
a mark, registrability
27. Application for registration28. Examination, opposition,
registration of mark
29. Rights conferred by registration,
duration, renewal
30. Invalidation, removal on grounds of
non-use cancellation/amendment
31. Collective marks
32. Licensing of marks33. Trade names
PART V -  GENERAL
PROVISIONS
34. Changes in ownership, licence
contracts
35. Rrepresentatives
36. Controller of Industrial Property
37. Registers, publication
38. Corrections of errors, extension of
time
39. Exercise of discretionary powers
40. Review committee
41. Appeal to Supreme Court
42. Infringement, unlawful acts,
offences
43. Regulations, administrative
instructions
44. Repeals
45. Transitional provisions, patents
46. Transitional provisions, trademarks47. CommencementIP/N/1/MUS/I/1
Page 16
A BILL
To provide for the protection of industrial property rights,
 including Patents, Industrial Designs and Trademarks
ENACTED by the Parliament of Mauritius, as follows-
PART  I - PRELIMINARY
1. Short title
This Act may be cited as The Patents, Industrial Designs and Trademarks Act
2000.
2. Interpretation
In this Act -
"Committee" means the Industrial Property Review Committee established
under section 40;
"Controller" means the Controller of Industrial Property referred to in section
36 and any reference to the Controller shall be construed as including areference to any officer discharging the functions of the Controller;
"Court" means the Supreme Court;
"International Classification" means -(a) as regards industrial designs, the classification according to
the Locarno Agreement of October 8, 1968 (as last revised)establishing an International Classification for Industrial Designs;
(b) as regards marks, the cla ssification according to the Nice
Agreement concerning the International Classification of
Goods and Services for the Purposes of the Registration of
Marks, of June 15, 1957, as last revised;
“legal practitioner” has the same meaning as in the Law Practitioners Act; "Minister" means the Minister to whom the subject of industrial property is
assigned;IP/N/1/MUS/I/1
Page 17
"Patent Cooperation Treaty" means the Patent Cooperation Treaty done at
Washington on June 19, 1970;
"priority date" means the date of the earlier application that serves as the
basis for the right of priority provided for in the Paris Convention;
"Registers" means the Registers referred to in section 37(1);
"Regulations" means Regulations referred to in section 44(1).
"World Trade Organisation" means the World Trade Organisation established
under the Marrakesh Agreement 1994.
PART  II - PATENTS
3. Definitions
(1) For the purposes of this part-
“patent” means the title granted to protect an invention.“invention” means an idea of an inventor which permits in practice the
solution to a specific problem  in the field of technology.
(2) For the purposes of subsection (1), an invention may be, or may relate
to a product or a process.
(3) The following, even if they are inventions within the meaning of
subsection (1) shall be excluded from patent protection –
(a) discoveries, scientific theories and mathematical methods;(b) schemes, rules or methods for doing business, performing
purely mental acts or playing games;
(c) methods for treatment of the human or animal body by surgery
or therapy, as well as diagnostic methods practised on thehuman or animal body;
(d) plants;(e) animals;(f) essentially biological processes for the production of plants and
animals;IP/N/1/MUS/I/1
Page 18
(g) plant varieties.
(4) Notwithstanding subsection (3)(c), the exclusion shall not apply to
products for use in any of the methods referred to in subsection(3)(c).
4. Patentable inventions
(1) An invention shall be patentable under this Act if it –
(i) is new;
(ii) involves an inventive step;
(iii) is capable of industrial application.
(2) An invention is new if it is not anticipated by prior art.
(3) For the purposes of subsection (2), prior art shall consist of everything
disclosed to the public, anywhere in the world, by publication in tangible form or byoral disclosure, by use or in any other way, prior to the filing or, where applicable, thepriority date, of the application claiming the invention.
(4) For the purposes of subsection (3), disclosure to the public of the
invention shall not be taken into consideration if -
(a) it occurred within twelve months preceding the filing date or,
where applicable, the priority date of the application; and
(b) it was by reason or in consequence of acts committed by the
applicant or his predecessor in title or of an abuse committed bya third party with regard to the applicant or his predecessor intitle.
(5) An invention shall be considered as involving an inventive step if,
having regard to the prior art relevant to the application claiming the invention, itwould not have been obvious to a person having ordinary skill in the art.
(6) An invention shall be considered industrially applicable if it can be
made or used in any kind of industry.
(7) For the purposes of subsection(6), “industry” shall be construed in its
broadest sense and it shall also cover handicraft, agriculture, fishery and services.IP/N/1/MUS/I/1
Page 19
(8) Inventions the commercial exploitation of which would be contrary to
public order or morality shall not be patentable.
5. Right to patent, naming of inventor
(1) The right to a patent shall belong to the inventor.(2) If two or more persons have jointly made an invention, the right to the
patent shall belong to them jointly.
(3) If and to the extent to which two or more persons have made the same
invention independently of each other, the person whose application has the earliestfiling date or, if priority is claimed, the earliest validly claimed priority date shall have
the right to the patent, as long as the said application is not withdrawn, abandoned or
rejected.
(4) The right to a patent may be assigned or may be transferred by
succession.
(5) Where an invention is made in the execution of, or under, an
employment contract, the right to the patent shall belong, in the absence of anyexpress provisions to the contrary, to the employer.
(6) The inventor shall be named as such in the patent, unless in a special
written declaration signed by him and addressed to the Controller, he indicates thathe wishes not to be named.
(7) Any promise or undertaking by the inventor made to any person to the
effect that he will make a declaration under subsection (6) shall be without effect.
6. Application
(1) An application for a patent shall be -
(a) made in the prescribed form;(b) filed with the Controller in such manner as may be prescribed
under this Act; and
(c) subject to payment of the prescribed fee.
(2) An application for a patent shall contain –
(a) a request which itself shall contain -IP/N/1/MUS/I/1
Page 20
(i) a petition to the effect that a patent be granted;
(ii) the name of and other prescribed data concerning the
applicant, the inventor and the representaitve, if any;
(iii) the title of the invention;
(b) a description, one or more claims, one or more drawings (when
required) and
(c) an abstract;(d) where the applicant is not the inventor, a statement justifying the
applicant’s right to the patent;
   (e) where the applicant’s ordinary residence or principal place of
business is outside Mauritius, an address within Mauritius forservice of any document.
(3) The description shall disclose the invention in a manner which is
sufficiently clear and complete for the invention to be carried out by a person havingordinary skill in the art, and shall, in particular indicate at least one mode known tothe applicant for carrying out the invention.
(4) The claim or claims shall –
(a) define the matter for which protection is sought;(b) be clear and concise and fully supported by the description.
(5) The description and the drawings in respect of any patent may be used
to interpret any claim under subsection 4.
(6) The abstract shall merely serve the purpose of technical information, in
particular, it shall not be taken into account for the purpose of interpreting the scopeof the protection.
(7) The applicant may, while the application is pending and before it is
granted, withdraw the application.
(8) Where an application is withdrawn, the applicant shall not be entitled to
any refund.IP/N/1/MUS/I/1
Page 21
7. Unity of invention
(1) Any application shall relate to one invention only or to a group of
inventions so linked as to form a single general inventive concept.
(2) The applicant may, at any time before the application is granted,
amend the application, provided that the amendment shall not go beyond thedisclosure in the initial application and the prescribed fee is paid.
(3) The applicant may, at any time before the application is granted, divide
the application into two or more applications, provided that each divisionalapplication shall not go beyond the disclosure in the initial application and paymentof the prescribed fee.
(4) Each divisional application shall be entitled to the filing date and where
applicable, the priority date of the initial application.
(5) The fact that a patent has been granted on an application that did not
comply with the requirement of unity of invention under subsection (1) shall not be aground for the invalidation of the patent.
8. Right of priority
(1) An application may contain a declaration claiming the priority, as
provided for in the Paris Convention, of one or more earlier national, regional orinternational applications filed by the applicant or his predecessor in title in or for anyState party to the said convention or any member of the World Trade Organisation.
(2) Where the application contains a declaration under subsection (1), the
Controller may require the applicant to furnish, within the prescribed time limit, acopy of the earlier application certified as correct by the office with which it was filed.
(3) The effect of the said declaration shall be as provided in the Paris
Convention.
(4) If the Controller finds that the requirements under this section have not
been fulfilled, the said declaration shall be considered not to have been made.
9. Information concerning corresponding fo reign applicati ons and patents
(1) An applicant shall, where requested to do so by the Controller, furnish
him with the date and number of any application for a patent filed by him abroadIP/N/1/MUS/I/1
Page 22
(“foreign application”)  relating to the same or essentially the same invention as that
claimed in the application filed with the Controller;
(2) An applicant shall, where requested to do so by the Controller, furnish
him with the following documents relating to one of the foreign applications referredto in subsection  (1) –
(a) a copy of any communication received by the applicant
concerning the results of any search and examination carriedout in respect of the foreign application;
(b) a copy of the patent granted on the basis of the foreign
application;
(c) a copy of any final decision rejecting the foreign application
or refusing the grant requested in the foreign application.
(3) An applicant shall, where requested to do so by the Controller, furnish
him with a  copy of any final decision invalidating the patent granted on the basis ofthe foreign application referred to in subsection (2).
10. Filing date, examination
(1) The Controller shall accord as the filing date the date of receipt of the
application, provided that, at the time of receipt, the application contains –
(a) an express or implicit indication that the granting of a patent is
sought;
(b) indications allowing the identity of the applicant to be established;(c) a part which, on the face of it appears to be a description of an
invention.
(2) If the Controller finds that the application did not, at the time of receipt,
fulfil the requirements referred to in subsection (1) he shall invite the applicant to filethe required correction and shall accord as the filing date the date of receipt of therequired correction, but if no correction is made, the application shall be treated as ifit has not been filed.
(3) Where the application refers to drawings which in fact are not included
in the application, the Controller may request the applicant to furnish the missingdrawings.IP/N/1/MUS/I/1
Page 23
(4) If the applicant complies with a request under subsection (3), the
Controller shall accord as the filing date the date of receipt of the missing drawings.
(5) If the applicant fails to comply with a request under subsection (3), the
Controller shall accord as the filing date the date of receipt of the application andshall treat any reference to the said drawings as non-existent.
(6) After according a filing date, the Controller shall examine -
(a) whether the application complies with the requirements of -
(i) this Act, more particularly sections 6(1) and (2);
(ii) the regulations made under this Act;
(b) whether information requested under section 9, if any, has been
provided.
(7) The Controller may in addition cause the application to be examined in
accordance with subsection (8).
(8) For the purpose of subsection (7), the Controller shall take into account
-
(a) the results of any international search reports, and any
international preliminary reports, made in relation to the
application;
(b) any search and examination report submitted under section
9(2)(a);
(c) any final decision submitted under section 9(2)(c).
11. Grant of patent, changes in patents
(1) Where the Controller finds that the conditions referred to in section
10(6) have been fulfilled, he shall grant the patent.
(2) If an application fails to comply with  the conditions referred to in section
10(6), the Controller shall refuse the application and notify the applicant of thatdecision.IP/N/1/MUS/I/1
Page 24
(3) When he grants a patent, the Controller shall –
(a) cause to be published in such manner as may be prescribed a
reference to the grant of the patent;
(b) issue to the applicant a certificate of the grant of the patent and a
copy of the patent;
(c) record the patent;(d) make available copies of the patent to the public, on payment of
the prescribed fee.
(4) The Controller shall, upon request of the owner of the patent, make
changes in the text or drawings of the patent in order to limit the extent of theprotection conferred thereby, provided that the change would not result in thedisclosure contained in the patent going beyond the disclosure contained in the initialapplication on the basis of which the patent was granted.
(5) A request under subsection (4) shall be accompanied by the prescribed
fee.
(6) The Controller, shall, whenever possible, reach a final decision of the
application not later than two years after the commencement of the examinationreferred to in section 10(6).
12. Rights conferred by patent
(1) Any exploitation of the patented invention in Mauritius by persons other
than the owner of the patent shall require the latter’s agreement.
(2) For the purposes of this Act, “exploitation” of a patented invention
means any of the following acts -
(a) when the patent has been granted in respect of a
product –
(i) making, importing, offering for sale, selling and using the
product;
(ii) stocking such product for the purposes of offering for
sale, selling or using;IP/N/1/MUS/I/1
Page 25
(b) when the patent has been granted in respect of a
process –
(i) using the process;(ii) doing any of the acts referred to in paragraph (a) in
respect of a product obtained directly by means of theprocess.
(3) An owner of a patent shall, in addition to any other rights, remedies or
actions available to him, have the right, subject to subsection (4) and section 14, toinstitute court proceedings against any person who infringes the patent byperforming, without his agreement, any of the acts referred to in subsection (2) or
who performs acts which make it likely that infringement will occur.
(4) Rights under the patent shall not extend –
(a) to acts in respect of articles which have been put on the market in
Mauritius by the owner of the patent or with his consent; or
(b) to the use of articles on aircra ft, land vehicles or vessels of other
countries which temporarily or accidentally enter the airspace,territory or waters of Mauritius; or
(c) to acts done only for experimental purposes relating to a patented
invention;
(d) to acts performed by any person who in good faith, before the filing
or, where priority is claimed, the priority date of the applicationon which the patent is granted and in Mauritius, was using theinvention or was making effective and  serious preparations forsuch use.
(5) The right of prior user referred to in subsection (4) may only be
transferred or devolve together with the enterprise or business, or with that part ofthe enterprise or business, in which the use or preparations for use have been made.
13. Duration, annual fees
(1) Subject to subsection (2), a patent shall expire 20 years after the filing
date of the application for the patent.IP/N/1/MUS/I/1
Page 26
(2) In order to maintain the patent or patent application an annual fee shall
be paid in advance to the Controller for each year, starting one year after the filing
date of the application for grant of the patent.
(3) Notwithstanding subsection (2), a period of grace of six months shall
be allowed for the late payment of the annual maintenance fee on payment of the
prescribed surcharge.
(4) If the annual maintenance fee is not paid in accordance with the
provisions of subsection (2) or (3), the patent application shall be deemed to have
been withdrawn and the patent shall lapse.
14. Exploitation by government or person thereby authorized
(1) Where -
(a) the public interest, in particular, national security, nutrition,
health or the development of other vital sectors of the national
economy so requires, or
(b) the Court on the application of any party has determined that the
manner of exploitation, by the owner of the patent or his
licensee, is anti-competitive, and after such determination by theCourt the Minister is satisfied that the exploitation of theinvention in accordance with this subsection would remedy suchpractice,
the Minister may decide that, even without the agreement of the owner of the patent,
a Government agency or a third person designated by the Minister may exploit a
patented invention.
(2) The exploitation of the patented invention shall be limited to the
purpose for which it was authorized and shall be subject to the payment to the owner
of an adequate remuneration.
(3) For the purpose of a decision under subsection (1) the Minister shall -
(a) take into account the economic value of the Minister's
authorization, as determined in the said decision, and where a
decision has been taken under subsection (1)(b), the need tocorrect anti-competitive practices;
(b) take his decision after hearing the owner of the patent and any
interested person if they wish to be heard.IP/N/1/MUS/I/1
Page 27
(4) A request for the Minister's authorization shall be accompanied by
evidence that the owner of the patent has received, from the person seeking theauthorization, a request for a contractual licence, but that the latter has been unableto obtain such a licence on reasonable commercial terms and conditions and within areasonable time.
(5) Subsection (4) shall not apply in cases of -
(a) national emergency or other circumstances of extreme urgency
provided, however, that in such cases the owner of the patentshall be notified of the Minister's decision as soon as reasonablypracticable;
(b) public non-commercial use, and(c) anti-competitive practices determined as such by the Court in
accordance with subsection (1)(b)].
(6) The exploitation of a patented invention in the field of semi-conductor
technology shall only be authorized -
(a) where the Court has determined that the manner of exploitation
of the patented invention, by the owner of the patent or hislicensee, is anti-competitive and theMinister is satisfied that the issuance of the non-voluntarylicence would remedy such practice; or
(b) for public non-commercial use.
(7) The authorization shall not exclude -
(a) the conclusion of licence contracts by the owner of the patent;
or
(b) the continued exercise, by the owner of the patent, of his rights
under section 12; or
(c) the issuance of a non-voluntary licence under section 15.
(8) Where a third person has been designated by the Minister, the
authorization may only be transferred with the enterprise or business of that personor with the part of the enterprise or business within which the patented invention isbeing exploited.IP/N/1/MUS/I/1
Page 28
(9) Where the exploitation of the invention by the Government agency or
third person designated by the Minister is authorized under subsection (1)(a), it shallbe predominantly for the supply of the market in Mauritius.
(10) Upon request of the owner of the patent, of the Government agency or
of the third person authorized to exploit the patented invention, the Minister may,after hearing the parties, if either or both wish to be heard, vary the terms of thedecision authorizing the exploitation of the patented invention to the extent thatchanged circumstances justify such variation.
(11) Upon the request of the owner of the patent, the Minister shall
terminate the authorization if he is satisfied, after hearing the parties, if either or bothwish to be heard, that the circumstances which led to his decision have ceased toexist and are unlikely to recur or that the Government agency or third persondesignated by him has failed to comply with the terms of the decision
(12) Notwithstanding subsection (11), the Minister shall not terminate the
authorization if he is satisfied that the need for adequate protection of the legitimateinterests of the Government agency or third person designated by him justifies themaintenance of the decision.
(13) The decision of the Minister under this section shall be subject to
review by the Court.
15. Non-voluntary licences
(1) On request, made to the Controller after the expiration of a period of
four years from the date of filing of the pa tent application or three years from the date
of the grant of the patent, whichever period expires last, the Controller may issue anon-voluntary licence if he is satisfied that the patented invention is not exploited oris insufficiently exploited, by working the invention locally or by importation, inMauritius.
(2) Notwithstanding subsection (1), a non-voluntary licence shall not be
issued if the owner of the patent satisfies the Controller that circumstances existwhich justify the non-exploitation or insufficient exploitation of the patented inventionin Mauritius.
(3) The decision issuing the non-voluntary licence shall fix -
(a) the scope and the function of the licence,(b) the time limit within which the licensee must begin to exploit the
patented invention, andIP/N/1/MUS/I/1
Page 29
(c) the amount of the adequate remuneration to be paid to the
owner of the patent and the conditions of payment.
(4) The holder of the non-voluntary licence shall -
(a) have the right to exploit the patented invention in Mauritius
according to the terms set out in the decision issuing the licence;
(b) commence the exploitation of the patented invention within the
time limit fixed in the said decision; and
(c) thereafter, exploit the patented invention sufficiently.
(5) If -
(a) the invention claimed in a patent (“later patent”) cannot be
exploited in the country without infringing a patent granted onthe basis of an application benefiting from an earlier filing or,where appropriate, priority date (“earlier patent”); and
(b) the invention claimed in the later patent involves an important
technical advance of considerable economic importance inrelation to the invention claimed in the earlier patent,
the Controller, upon the request of the owner of the later patent, may issue a non-
voluntary licence to the extent necessary to avoid infringement of the earlier patent.
(6) Where a non-voluntary licence is issued under subsection (5), the
Controller, upon the request of the owner of the earlier patent, shall issue a non-voluntary licence in respect of the later patent.
(7) In the case of a request for the issuance of a non-voluntary licence
under subsections (5) and (6), subsection (3) shall apply mutatis mutandis  with the
proviso that no time limit needs to be fixed.
(8) In the case of a non-voluntary licence issued under subsection (5), the
transfer may be made only with the later patent, or, in the case of a non-voluntarylicence issued under subsection (6), only with the earlier patent.
(9) The request for the issuance of a non-voluntary licence shall be subject
to payment of the prescribed fee.
(10) Section 14(2) to 14(10) shall apply mutatis mutandis to a non-voluntary
licence issued under this section.IP/N/1/MUS/I/1
Page 30
16. Invalidation
(1) Any interested person may request the Court to invalidate a patent.
(2) The Court may invalidate the patent if the person requesting the
invalidation proves that any of the requirements of sections 3, 4 and 6(2)(b), 6(3),6(4) is not fulfilled or if the owner of the patent is not the inventor or his successor intitle.
(3) Any invalidated patent or claim or part of a claim shall be regarded as
null and void from the date of the grant of the patent.
(4) The final decision of the Court shall be notified to the Controller who
shall record it and publish a reference thereto as soon as possible.
17. Patent Cooperation Treaty
(1) For the purposes of this  section  “designate,” “designated Office,”
“elect,” “elected Office,” “international application,” “international filing date,”“international preliminary examination” and “receiving Office” have the samemeanings as in the Patent Cooperation Treaty.
(2) An international application designating Mauritius shall, subject to this
section, be treated as an application for a patent filed under this Act having as itsfiling date the international filing date accorded under the Patent Cooperation Treaty.
(3) The Controller shall, unless any agreement is in force under
subsection(4), act as a receiving office in respect of any international application filedwith it by a resident or national of Mauritius.
(4) The Controller may, with the consent of the Minister, make an
agreement of the kind referred to in Rule 19.1(b) of the Regulations made under thePatent Cooperation Treaty whereby an intergovernmental organization or thenational industrial property  office of another Contracting State of the Patent
Cooperation Treaty shall act instead of the Controller as receiving office forapplicants who are residents or nationals of  Mauritius.
(5) The Controller shall act as a designated office in respect of an
international application in which Mauritius is designated for the purposes ofobtaining a national patent under this Act.
(6) The Controller shall act as an elected office in respect of an
international application in which Mauritius is designated under subsection (5) if theIP/N/1/MUS/I/1
Page 31
applicant elects Mauritius for the purposes of international preliminary examination
under Chapter II of the Patent Cooperation Treaty.
(7) The Controller as designated office or elected office shall not
commence processing of an international application designating Mauritius beforethe expiration of the time limit referred to in subsection (8) except if the applicantcomplies with the requirements of that subsection and files with the Controller anexpress request for early commencement of such processing.
(8) The applicant in respect of an international application designating
Mauritius shall, before the expiration of the time limit applicable under Article 22or 39 of the Patent Cooperation Treaty or of such later time limit as may beprescribed in the regulations under this Act  -
(a) pay the prescribed fee to the Controller;  and
(b) if the international application was not filed in English, and has
not been published under the Patent Cooperation Treaty inEnglish, file with the Controller a translation of the internationalapplication, containing the prescribed contents, into English.
(9) If the applicant does not comply with the requirements of subsection (8)
within the time limit referred to in that subsection, the international application shallbe considered withdrawn for the purposes of this Act.
(10) The Controller shall process international applications in accordance
with the provisions of the Patent Cooperation Treaty, the regulations establishedthereunder and the Administrative Instructions under those regulations and with theprovisions of this Act and the regulations made under this Act.
(11) For the purposes of subsection (10), in the event of conflict, the
provisions of the Patent Cooperation Treaty, the Regulations made thereunder andthe Administrative Instructions under those Regulations shall prevail.
(12) The regulations under this Act may provide for-
(a) the processing of international applications;(b) the functions of the Controller in connection with the Patent
Cooperation Treaty, including fees payable, time limits,prescribed languages and other requirements in relation tointernational applications.IP/N/1/MUS/I/1
Page 32
PART  III - INDUSTRIAL  DESIGNS
18. Definition of industrial design
(1) For the purposes of this part, any composition of lines or colours or any
three-dimensional form, or any material, whether or not associated with lines orcolours, is deemed to be an industrial design, provided that such composition, formor material-
(a) gives a special appearance to a product of industry or
handicraft;
(b) can serve as a pattern for a product of industry or handicraft;
and
(c) appeals to and is judged by the eye.
(2) The protection under this Act does not extend to anything in an
industrial design which serves solely to obtain a technical result and to the extentthat it leaves no freedom as regards arbitrary features of appearance.
19. Registrable industrial design
(1) An industrial design is registrable if it is new.(2) An industrial design is new if it has not been disclosed to the public,
anywhere in the world, by publication in tangible form or by use or any other way,prior to the filing date or, where applicable,  the priority date of the application for
registration
(3) Section 4(4) shall apply, mutatis mutandis, to applications for the
registration of  industrial designs.
(4) Any industrial design that is contrary to public order or morality is not
registrable.
20. Right to industrial design, naming of creator
(1) The right to an industrial design shall belong to the creator.(2) Where two or more persons have jointly created an industrial design,
the right to the industrial design shall belong to them jointly.
(3) If and to the extent to which two or more persons have created the
same industrial design independently of each other, the person whose applicationhas the earliest filing date or, if priority is claimed, the earliest validly claimed priorityIP/N/1/MUS/I/1
Page 33
date shall have the right to the industrial design, as long as the said application is not
withdrawn, abandoned or rejected.
(4) The right to an industrial design may be assigned or may be
transferred by succession.
(5) Where an industrial design is made in execution of an employment
contract, the right to the industrial design shall belong in the absence of expressprovisions to the contrary, to the employer.
(6) The creator shall be named as such in the industrial design, unless in a
special written declaration signed by him and addressed to the Controller heindicates that he wishes not to be named.
(7) Any promise or undertaking by the creator made to any person to the
effect that he will make such a declaration shall be without legal effect.
21. Application, right of priority
(1) An application for the registration of an industrial design shall be filed
with the Controller and shall contain a request, drawings, photographs or otheradequate graphic representations of the industrial design and an indication of thearticle or articles which constitute the industrial design or in relation to which theindustrial design is to be used.
(2) The application may be accompanied by a specimen of the article
embodying the industrial design where the industrial design is two-dimensional.
(3) Where the applicant is not the creator, the request shall be
accompanied by a statement justifying the applicant’s right to registration of theindustrial design.
(4) The application may contain a declaration claiming priority, as provided
for in the Paris Convention, of one or more earlier national or regional applications orinternational deposits filed by the applicant or his predecessor in title in or for anyState party to that Convention or any member of the World Trade Organisation.
(5) Where the application contains a declaration referred to in subsection
(4), the Controller may require the applicant to furnish, within the prescribed timelimit, a copy of the earlier application or international deposit, certified as correct bythe office with which it was filed, and the effect of that declaration shall be asprovided for in the Paris Convention.IP/N/1/MUS/I/1
Page 34
(6) Where the Controller finds that the requirements under this section and
any Regulations made under this Act, pertaining to a declaration, are not fulfilled, thedeclaration shall be considered not to have been made.
(7) Two or more industrial designs may be the subject of the same
application if they relate to the same class of the International Classification or to thesame set or composition of articles.
(8) An application, at the time of filing, may contain a request that the
publication of the industrial design, upon registration, be deferred for a period notexceeding twelve months from the date of filin g, or if priority is claimed, from the date
of priority, of the application.
(9) The applicant may, at any time before it is granted, withdraw the
application.
(10) The application shall be subject to the payment of the prescribed
application fee.
22. Examination, registration and publication
(1) The Controller shall accord as the filing date the date of receipt of the
application, provided that, at the time of receipt, the application contains -
(a) indications allowing the identity of the applicant to be
established;
(b) the required graphic representations of the industrial design.
(2) If the Controller finds that the application did not, at the time of receipt,
fulfil the requirements referred to in subsection (1) he shall invite the applicant to filethe required correction and shall accord as the filing date the date of receipt of therequired correction, but if no correction is made, the application shall be treated as ifit has not been filed.
(3) After according a filing date, the Controller shall examine -
(a) whether the application complies with the requirements of
section 21(1), 21(2) and 21(3) and the Regulations pertainingthereto;
(b) whether the application fee has been paid; and(c) whether the industrial design complies with the requirements of
sections 18 and 19(4) and the regulations pertaining thereto.IP/N/1/MUS/I/1
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(4) Where the Controller finds that the conditions referred to in
subsection (3) are fulfilled, he shall register the industrial design, publish a referenceto the registration and issue to the applicant a certificate of registration of theindustrial design, otherwise, he shall refuse the application.
(5) Notwithstanding subsection (4), where a request has been made under
section 21(8) for deferment of publication, upon registration of the industrial design-
(a) neither the representation of the design nor any file relating to
the application shall be open to public inspection; and
(b) the Controller shall publish a mention of the deferment of the
publication of the industrial design and information identifying
the registered owner, and indicating the filing date of the
application, the length of the period for which deferment hasbeen requested and any other prescribed particulars.
(6) At the expiry of the period of deferment, the Controller shall publish the
registered industrial design.
(7) The institution of legal proceedings on the basis of a registered
industrial design during the period of deferment of publication shall be subject to thecondition that the information contained in the Register and in the file relating to theapplication has been communicated to the person against whom the action isbrought.
23. Rights conferred by regist ration, duration, renewal
(1) The exploitation of a registered industrial design in Mauritius by
persons other than the registered owner shall require the agreement of the latter.
(2) For the purposes of this Act, "exploitation" of a registered industrial
design means the making, sellin g or importation of  articles bearin g or embodying a
design which is a copy, or substantially a copy, of the registered industrial design.
(3) Rights under a registered industrial design shall not extend to acts in
respect of articles which have been put on the market in Mauritius by the registeredowner or with his consent.
(4) The registered owner of an industrial design shall, in addition to any
other rights, remedies or actions available to him, have the right to institute courtIP/N/1/MUS/I/1
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proceedings against any person who infringes the industrial design by performing,
without his agreement, any of the acts referred to in subsection (2) or who performsacts which make it likely that infringement will occur.
(5) The registration of an industrial design shall be for a period of five
years from the filing date of the application for registration.
(6) The registration of an industrial design may be renewed for two further
consecutive periods of five years through the payment of the prescribed fee.
(7) A period of grace of six months shall be allowed for the late payment of
the renewal fee on payment of the prescribed surcharge.
24. Invalidation
(1) Any interested person may request the court to invalidate the
registration of an industrial design.
(2) The court shall invalidate the registration if the person requesting the
invalidation proves that any of the requirements of sections 18 and 19 is not fulfilledor if the registered owner of the industrial design is not the creator or his successorin title.
(3) Any invalidated registration of an industrial design shall be regarded as
null and void from the date of the registration.
(4) The final decision of the Court shall be notified to the Controller who
shall record it and publish a reference thereto as soon as possible.
PART  IV - MARKS, COLLECTIVE MARKS, TRADE NAMES
25. Definition of mark, collective mark and trade name
For the purposes of this part -(a) "collective mark" means any visible sign designated as such in the
application for registration and capable of distinguishing the originor any other common characteristic, including the quality of goodsor services of different enterprises which use the sign under thecontrol of the registered owner of the collective mark;
(b)           "mark" means any visible sign capable of distinguishing the
goods ("trademark") or services ("service mark") of an
enterprise;IP/N/1/MUS/I/1
Page 37
(c)  "trade name" means the name or designation identifying and
distinguishing an enterprise.
26. Acquisition of the exclusive right to a mark, registrability
(1) The exclusive right to a mark, as conferred by this Act, shall be
acquired by registration in accordance with the provisions thereof.
(2) A mark cannot be registered -
(a) if it is incapable of distinguishing the goods or services of one
enterprise from those of other enterprises;
(b) if it is contrary to public order or morality;(c) if it is likely to mislead the public or trade circles, in particular as
regards the geographical origin of the goods or servicesconcerned or their nature or characteristics;
(d) if it is identical with, or is an imitation of or contains as an
element, an armorial bearing, flag and other emblem, a name orabbreviation or initials of the name of, or official sign or hallmarkadopted by, any State, intergovernmental organisation ororganisation created by an international convention, unlessauthorised by the competent authority of that State ororganisation;
(e) if it is identical with, or conf usingly similar to, or constitutes a
translation of, a mark or trade name which is well-known inMauritius for identical or similar goods or services of anotherenterprise, or if it is well-known and registered in Mauritius forgoods or services which are not identical or similar to those inrespect of which registration is applied for, provided, in the lattercase, that use of the mark in relation to those goods or serviceswould indicate a connection between those goods or servicesand the owner of the well-known mark and that the interests ofthe owner of the well-known mark are likely to be damaged bysuch use;
(f) if it is identical with a mark belonging to a different proprietor and
already on the Register, or with an earlier filing or priority date,
in respect of the same goods or services or closely relatedgoods or services, or if it so nearly resembles such a mark as tobe likely to deceive or cause confusion.IP/N/1/MUS/I/1
Page 38
(3) The Controller may refuse to accept an application for the registration
of a mark on which appear the words "patent", "patented", "registered", "registereddesign", standard, "copyright", or any abbreviation of these words.
(4) Except with the authority of the Minister, no mark shall be registered
which contains -
(a) a representation of the flag of Mauritius;
(b) a representation of the Arms or Seal of Mauritius;
(c) anything resembling any of the representations specified in
paragraph (a) or (b);
(d) the word "Mauritius"; or(e) any word or representation, not specified in paragraphs (a) to
(d), likely to lead people to believe that the person claiming to bethe proprietor of the mark has or recently had authorisation ofthe Government.
27. Application for registration
(1) The application for registration of a mark shall be filed with the
Controller and shall contain a request, a reproduction of the mark and a list of thegoods or services for which registration of the mark is requested, listed under theapplicable class or classes of the International Classification.
(2)An application under subsection (1) shall be subject to the payment of the
prescribed application fee.
(3) The application may contain a declaration claiming the priority, as
provided for in the Paris Convention, of an earlier national or regional applicationfiled by the applicant or his predecessor in title in or for any state party to thatconvention or any member of the World Trade Organisation in which case, theController may require the applicant to furnish, within the prescribed time limit, acopy of the earlier application, certified as correct by the office with which it was filed.
(4) The effect of a declaration under subsection (3) shall be as provided in
the Paris Convention.
(5)     If the Controller finds that the requirements under subsection (3) and the
regulations pertaining thereto have not been fulfilled, the declaration shall beconsidered not to have been made.IP/N/1/MUS/I/1
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(6) The applicant may withdraw the application at any time during its
pendency.
(7) Where an application is withdrawn, the applicant shall not be entitled to
any refund.
28. Examination, opposition, registration of mark
(1) The Controller shall examine whether the application complies with the
requirements of section 27(1) and (2) and the regulations pertaining thereto.
(2) The Controller shall examine and determine whether the mark is a
mark as defined in section 25(b) and is registrable under Section 26(2)(a) to 26(2)(f).
(3) Where the Controller finds that the conditions referred to in
subsections (1) and (2) are fulfilled, he shall forthwith cause the application, asaccepted, to be published in the prescribed manner.
(4) Any interested person may, within the prescribed period and in the
prescribed manner, give notice to the Controller of opposition to the registration ofthe mark on the grounds that one or more of the requirements of section 25(b)and 26(2) and the regulations perta ining thereto are not fulfilled.
(5) The Controller shall send forthwith a copy of such a notice to the
applicant, and, within the prescribed period and in the prescribed manner, theapplicant shall send to the Controller a counter-statement of the grounds on whichhe relies for his application.
(6) If the applicant does not send a counter-statement under subsection
(5), he shall be deemed to have abandoned the application.
(7) If the applicant sends a counter-statement, the Controller shall furnish
a copy thereof to the person giving notice of opposition and, after hearing the parties,if either or both wish to be heard, and considering the merits of the case, shall decidewhether the mark should be registered.
(8)  After an application is published and until the registration of the mark,
the applicant has the same privileges and rights as he would have if the mark hadbeen registered.
(9) Notwithstanding subsection (8), it shall be a valid defence to an action
brought under the subsection in respect of an act done after the application waspublished, if the defendant establishes that the mark could not validly have beenregistered at the time the act was done.IP/N/1/MUS/I/1
Page 40
(10) Where the Controller finds that the conditions referred to in
subsections (1) and (2) are fulfilled, and either -
(a) the registration of the mark has not been opposed within the
prescribed time limit;  or
(b) the registration of the mark has been opposed and the
opposition has been decided in the applicant's favour,
he shall register the mark, publish a reference to the registration and issue to the
applicant a certificate of registration.  Otherwise, he shall refuse the application.
29. Rights conferred by regist ration, duration, renewal
(1) The use of a registered mark, in relation to any goods or services for
which it has been registered, by any person other than the registered owner shallrequire the agreement of the latter.
The registered owner of a mark shall, in addition to any other rights, remedies
or actions available to him, have the right to institute court proceedings against anyperson who infringes the mark by using, without his agreement, the mark asaforesaid or who performs acts which make it likely that infringement will occur.
(3)    The right under subsection (2) shall extend to the use of a sign similar to
the registered mark and use in relation to goods and services similar to those forwhich the mark has been registered, where confusion may arise in the public.
(4)     The provision of section 26(2)(e) shall apply, mutatis mutandis, in any
action instituted by the owner of a well-known mark against any person in respect ofthe unlawful use of the well-known mark.
(5) The rights conferred by registration of a mark shall not extend to acts in
respect of articles which have been put on the market in Mauritius by the registeredowner or with his consent.
(6) The registration of a mark shall be for a period of ten years from the
filing date of the application for registration.
(7) The registration of a mark may, upon request, be renewed for
consecutive periods of ten years, provided that the registered owner pays theprescribed renewal fee.IP/N/1/MUS/I/1
Page 41
(8) A period of grace of six months shall be allowed for the late payment of
the renewal fee on payment of the prescribed surcharge.
30. Invalidation, removal on grounds of non-use cancellation/amendment
(1) Any interested person may request the Controller to invalidate the
registration of a mark.
(2) The Controller shall invalidate the registration if the person requesting
the invalidation proves that any of the requirements of sections 25(b) and 26(2) is notfulfilled.
(3) Any invalidation of the registration of a mark shall be deemed to have
been effective as from the date of registration, and it shall be recorded and a
reference thereto published as soon as possible.
(4) Any interested person may request the Controller to remove a mark
from the Register, in respect of any of the goods or services in respect of which it isregistered, on the ground that up to one month prior to filing the request, the markhad, after its registration, not been used by the registered owner or a licensee duringa continuous period of three years or longer.
(5) Notwithstanding subsection (4), a mark shall not be removed if it is
shown that special circumstances prevented the use of the mark and that there wasno intention not to use or to abandon the mark in respect of those goods or services.
31. Collective marks
(1)  Subject to subsections (2) to (4), sections 26 to 30 shall apply to
collective marks, except that references to section 25 (b) shall be read as 25(a).
(2) An application for registration of a collective mark shall designate the
mark as a collective mark and shall be accompanied by a copy of the terms of theagreement governing the use of the collective mark.
(3) The registered owner of a collective mark shall notify the Controller of
any changes made in respect of the terms of the agreement referred to in subsection(2).
(4) In addition to the grounds provided in section 30(2), the Controller shall
invalidate the registration of a collective mark if the person requesting theinvalidation proves that -
(a) only the registered owner uses the mark;IP/N/1/MUS/I/1
Page 42
(b) that he uses or permits its use in contravention of the agreement
referred to in subsection (2);
(c) that he uses or permits its use in a manner liable to deceive
trade circles or the public as to the origin or any other commoncharacteristics of the goods or services concerned.
32. Licensing of marks
(1) Any license contract concerning the registration of a mark, or an
application therefor, shall provide for effective control by the licensor of the quality ofthe goods or services of the licensee in connection with which the mark is used.
(2)  If the license contract does not provide for such quality control or if
such quality control is not effectively carried out, the license contract shall not bevalid.
(3) The registration of a collective mark, or an application therefor, shall
not be the subject of a license contract.
33. Trade names
(1) A name or designation may not be used as a trade name if -
(a) by its nature or the use to which it may be put, it is contrary to public
order or morality; or
(b) it is liable to deceive trade circles or the public as to the nature
of the enterprise identified by that name.
(2) Notwithstanding any laws or regulations providing for any obligation to
register trade names, such names shall be protected, even prior to or withoutregistration, against any unlawful act committed by third parties.
(3) For the purposes of subsection (2), any subsequent use of the trade
name by a third party whether as a trade name or a mark or collective mark, or anysuch use of a similar trade name or mark, likely to mislead the public, shall bedeemed unlawful.
PART V - GENERAL PROVISIONS
34. Changes in ownership, licence contracts
(1)  Any change in the ownership of a patent, the registration of an
industrial design or the registration of a mark or collective mark, or in the ownershipIP/N/1/MUS/I/1
Page 43
of an application therefor, shall be in writing and shall, at the request of any
interested party, to the Controller, be entered in the appropriate register.
(2) Any change referred to in subsection (1), other than one relating to an
application shall be published by the Controller.
(3) Any change effected under subsection (1) shall have no effect against
third parties until an entry has been made under subsection (1).
(4)  Any change in the ownership of the registration of a collective mark, or
in the ownership of an application therefor, shall require previous approval by theMinister.
(5)  Any change in the ownership of a trade name must be made with the
transfer of the enterprise or part thereof identified by that name and shall be inwriting.
(6)  A change in ownership of the registration of a mark or a collective mark
shall be invalid if it is likely to deceive or cause confusion, particularly in regard to thenature, origin, manufacturing process, charac teristics, or suitability for their purpose,
of the goods or services in relation to which the mark or collective mark is intendedto be used or is being used.
(7)  Any licence contract concerning a patent, a registered industrial design
or a registered mark, or an application therefor, shall be submitted to the Controllerwho shall keep its contents confidential but shall record it and publish a referencethereto.
(8) The licence contract shall have no effect against third parties until such
recording is effected.
35. Representation
Where an applicant's ordinary residence or principal place of business is
outside Mauritius, he shall be represented by a legal practitioner resident andpractising in Mauritius.
36. Controller of Industrial Property
(1) There shall be for the purposes of this Act a Controller of Industrial
Property, who shall be a public officer.
(2) The Controller shall perform all duties required by this Act  and the
enactments listed in the Schedule.IP/N/1/MUS/I/1
Page 44
(3) The Controller shall be assisted by  such other Public Officers as may
be appointed or assigned for that purpose.
37. Registers, publication
(1) The Controller shall maintain separate Registers for patents, industrial
designs and marks.  Collective marks shall be registered in a special section of theRegister of Marks.
(2) All the entries and recordings provided for in this Act shall be effected
in the said Registers.
(3) Subject to section 34(7) the Registers may be consulted by any
person, and any person may obtain extracts therefrom, under the conditions
prescribed in the Regulations.
(4) The Controller shall publish in such manner as may be prescribed all
the publications provided for in this Act.
38. Corrections of errors, extension of time
(1)  The Controller may, subject to any provision in the regulations, correct
any error of translation or transcription, clerical error or mistake in any application ordocument filed with the Controller or in any recording effected pursuant to this Act orthe regulations.
(2) If the Controller is satisfied that the circumstances justify it, he may,
upon receiving a written request, extend the time for doing any act upon notice to theparties concerned and upon such terms as he may direct.
39. Exercise of discretionary powers
The Controller shall hear any party to any proceedings before him before
exercising adversely to that party any discretionary power vested in him by this Actor any regulations made under this Act.
40. Review committee
(1) There is established for the purposes of this Act an Industrial Property
Review Committee.
(2) The Committee shall be composed of -
(a) a representative of the Attorney General’s 0ffice who shall be
the Chairperson of the Committee;IP/N/1/MUS/I/1
Page 45
(b) a representative of the Ministry responsible for the subject of
industry not below the rank of Principal Assistant Secretary; and
(c) a representative of the Ministry responsible for the subject of
industrial property not below the rank of Principal AssistantSecretary.
(3) Where a person is aggrieved by any decision of the Controller -
(a) under sections 11, 15, 22, 28, 30;
(b) under section 9 of the Layout-Designs (Topographies) of
Integrated Circuits Act 2000;
(c) under section 10 of the Geographical Indications Act 2000;
the person shall request the Controller to refer the matter to the Committee for
review.
(4) The Committee may call for any interested party and for the Controller
and the Committee may examine all documents in their possession.
(5) The Committee shall perform its functions diligently and expeditiously
and refrain from communicating to any unauthorised person any information suppliedto it.
(6) The Committee shall meet as often as necessary at the request of its
Chairperson and it shall regulate its proceedings.
41. Appeal to Supreme Court
(1) Any person aggrieved by the decision of the Controller under this Act,
including the grant of a patent or the registration of an industrial design or of a markor collective mark, or the refusal of an application for such a grant or registration,may appeal to the Court.
(2) No person who is aggrieved by the decision of the Controller shall
appeal to the Court except within 28 days  after the matter in dispute has beenreviewed by the Committee under section 40 and the Committee has given itsfindings.
(3) The Court may make rules for ensuring the prosecution of appeals
under the Act.IP/N/1/MUS/I/1
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(4) On the hearing of an appeal under this section, the Court shall if
required, hear the parties and the Controller, and shall make an order determiningwhether, and subject to what conditions or limitations as to mode or place of user orotherwise, grant of patent or registration of mark or industrial design is to bepermitted.
(5) On the hearing of an appeal under this section, any party may, by
special leave of the Court, bring forward further material for the consideration of theCourt.
(6) In proceedings under this section, no further grounds of opposition to
the registration of a trade mark shall, except by leave of the Court, be allowed to betaken by the party giving notice of opposition or the Controller other than those
stated by the party giving notice of opposition.
(7) Where any further grounds of objection are taken, the applicant may
withdraw his application without payment of costs on giving notice in writing of hisintention to the Controller and to any other party to the appeal within one month afterleave has been obtained.
(8) In any appeal under this section, the Court may after hearing the
applicant, the Controller and the party giving notice of opposition, permit the trademark proposed to be registered to be modified in any manner not substantiallyaffecting its identity.
(9) A trade mark modified under subsection (8) shall be advertised by the
applicant in the gazette and in 2 daily newspapers, one of which shall be approvedby the Controller, before being registered.
(10) Where a party who gives notice of opposition or of appeal does not
reside or carry on business, and does not possess property, in Mauritius, the Courtmay require him to give security for costs of the proceedings before it relative to theopposition or appeal, and in default of security being given, may treat the oppositionor appeal as abandoned.
42. Infringement, unlawful acts, offences
(1)  Subject to sections 12(4), 14, 15, 23 and 29(5), an infringement shall
consist of the performance of any act referred to in sections 12, 23(2), 29(1), 29(2)and 29(3) in Mauritius by a person other than the owner of the title of protection andwithout the agreement of the latter.
(2) On the request of the owner of the title of protection, or of a licensee if
he has requested the owner to institute court proceedings for a specific relief and theowner has refused or failed to do so, the court may -IP/N/1/MUS/I/1
Page 47
(a) grant an injunction to prevent infringement, an imminent
infringement, or an unlawful act referred to in section 33;
(b)  award damages; and(c) grant any other remedy provided for in law.
(3) Any person who knowingly performs an act which constitutes an
infringement as defined in subsection (1) or an unlawful act as defined in section 33shall be guilty of an offence punishable by a fine not exceeding 250,000 rupees andimprisonment for a term not exceeding 5 years.
(4)  For the purposes of proceedings, other than criminal proceedings, in
respect of the violation of the rights of the owner of the patent referred to in
subsections (1) and (2), where the subject matter of the patent is a process forobtaining a product, the burden of establishing that an identical product was notmade by the process shall be on the alleged infringer if either of the followingconditions is fulfilled -
(a) the product is new; or(b) a substantial likelihood exists that the product was made by the
process and the owner of the patent has been unable throughreasonable efforts to determine the process actually used.
(5)  In requiring the production of evidence, the Court before which the
proceedings referred to in subsection (4) take place, shall take into account thelegitimate interests of the alleged infringer in not disclosing his manufacturing andbusiness secrets.
43. Regulations, administrative instructions
(1) The Minister shall issue regulations generally for the purposes of this
Act.
(2) The Regulations may, in particular, but without prejudice to subsection
(1)  provide -
(a) for the payment of fees; and(b) for the procedure for the registration of industrial designs, marks
and collective marks and matters related thereto.IP/N/1/MUS/I/1
Page 48
(3) The Controller may issue administrative instructions relating to the
procedures under this Act and the Regulati ons as well as to the other functions of
the Controller.
44. Repeals
The following are hereby repealed -(a) The Patents Act; and(b) The Trade Marks Act.
45. Transitional provisions, patents
(1) Where, upon the commencement of this Act, a certificate of interim
protection has been issued in relation to an application made under the Patents Act,such an application shall, notwithstanding the repeal of the Patents Act, be subject tothe Patents Act.
(2) Where, upon the commencement of this Act, in relation to an
application made under the Patents Act, no certificate of interim protection has beenissued, the application shall be processed in accordance with this Act.
(3)     The Controller shall -
(a) perform all the functions of and exercise all the powers
conferred  in relation to patents under the Patents Act; and
(b) be the custodian of the Register of patents kept under the
Patents Act and of the patents granted under that Act togetherwith the certificates of interim protection and other relevantrecords.
(4) Subject to subsection (5), the term of every patent that has not expired
before the commencement of this Act shall, notwithstanding the repeal of the PatentsAct, be deemed to be 20 year from the date of the Patent.
(5) A patent which before the coming into operation of this Act has been
extended under section 5(2) of the repealed Act shall remain in force for theunexpired portion of the period for which it was extended.
(6) Nothing in this Act applies to or affects  -
(a) any proceedings for revocation or infringement of a patent
commenced  before the coming into operation of this Act;IP/N/1/MUS/I/1
Page 49
(b) any application for the extension of the term of a patent made
before the commencement of this Act.
(7) Notwithstanding subsection (4) and (5), a patent referred to therein
shall be subject to the payment of an annual maintenance fee which shall beprescribed.
46. Transitional provisions, trademarks
(1) Where, upon the commencement of this Act, an application made
under the Trade Marks Act is pending, such an application shall, notwithstanding therepeal of the Trade Marks Act be dealt with under the Trade Marks Act but uponbeing granted, shall be subject to this Act.
(2) The Controller shall -
(a) perform all the functions of and exercise all the powers
conferred on the Authority in relation to trade marks under theTrade Marks Act;
(b) be the custodian of the Register of Trade Marks kept under the
Trade Marks Act and of other relevant records.
(3) Notwithstanding the repeal of the Trade Marks Act, a trade mark
registered thereunder shall remain in force but shall, subject to subsection (4), bedeemed to have been registered under this Act.
(4) Trade marks registered under the Trade Marks Act shall be due for
renewal within the same period as under the said Act and, upon renewal for thatperiod, shall be subject to this Act.
47. Commencement
(1) This Act shall come into operation on a date to be fixed by
Proclamation.
(2) Different sections may come into operation on different dates.IP/N/1/MUS/I/1
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Schedule
(Section 36)
List of Enactments
1. The Layout-Designs (Topographies) of Integrated Circuits Act, 2000.
2. The Geographical Indications Act, 2000.
__________