The Minister of Trade and Industry, dohereby publish the Patents Amendment Bill,. 2002, for public comment.
In the main, the amending clauses deal with the Bolar provision, i.e. allowing research to be conducted on patents, which are still in force, in all fields of technology (not only limited to pharmaceutical or agrochemical products). Researchers would not be allowed to compete commercially with the patentee, before the expiration of the patent.
Other clauses are of a technical nature.
"ixii A'national phase of internationalapplication' means an application for a patent in the Republic in terms of section 438, in respect of which the applicant has complied with section43E.".
Amendment of section 32 of Act 57 of 1978, as amended by section2 of Act 44 of 1986 2.
@I@ end with a claim or claims defining the invention for which protection is claimed.
Amendment of section 33 of Act 57 of 1978, as amended by section 2 of Act 67 of 1983 and section 35of Act 38 of 1997 3. Section 33 of the Patents Act,.
applications in which that matter was disclosed in so far as it is fairly based on such earliest application.
Amendment of section 43DofAct 57 of1978 4. Section 43D of the Patents Act, 1978, is hereby amended by the insertion of the words "the national phase of' before the words "an international application".
Amendment of section 43E of Act 57 of 1978 5.
by the insertion into subsection l(b) of the words "within the period prescribed therefor," before the words "a translation of".
(2) If the applicant does not comply with subsection (1) within the period referredto in that subsection[or the further period that the registrar allows], the international application concerned, insofar as the Republic is designated or elected, shall be deemed to have been abandoned for the purposes of this Act, provided that the registrar may upon application made either before or after the expiry of the relevant extended period for compliance with subsection (1), extend the period for a further period not exceeding three months.
43F.(1) When.processing the national phase of an international application, the patent office shall, subject to subsections (2), [and] (3) and (41, apply the Patent Cooperation Treaty, the regulations made thereunder and the administrative instructions issued under those regulations, and the other provisions of this Act & the regulations made thereunder. When processing the national phase of an international application, the Patent Cooperation Treaty, the regulations made thereunder and the administrative instructions issued under those regulations shall prevail in the event of any conflict with this Act or with the regulations made thereunder.
the applicant has complied with Rule 17.
the priority documentreferred tointhe said Rule 17.
if an application for amendment of the national phase of the international application is made before publication in terms of section 42, [the acceptance of the international application,] the application.
Saveas provided in this Chapterand save as prescribed in Requlations 67A to 671, the provisions of this Act and of the regulations made thereunder relating to an application for a patent accompanied by acompletespecificationshall, mutatis mutandis, applyto the national phase of an international application, and to.any patent granted thereon.
Amendment of section 45 of Act 57 of 1978, as amended by section 40 of Act 38 of 1997 7.
(2) The disposal [sale] of a patented article by or on behalf of a patentee or his licensee shall, subject to other patent rights, give the purchaser the right to use, offer to dispose of and disposeof that article.
Amendment of section 45A of Act 57 of 1978 8.
Itshall not be permitted to possess the patented invention made, used, imported or acquired in terms of sub-section (7) of any purpose other than for the obtaining, development or submission of information as confernplated in sub-secfion (1).
Amendment of section 48 of Act 57 of 1978 9.
"(2) Whereapatenthas been restored under section 47, any person, during the period referred to in subsection(1) (a) has expended any money, time or labour with a view to making, using, exercising,[or] disposing.of, offering to dispose of, or importing the invention, mayapply in the prescribedmanner to the commissioner for compensation in respect of the money, time and labour so expended."
"(a) to make, use, exercise, [or] dispose of, offer to dispose of, or import the patented invention;".
Amendment of section 57 of Act 57 of 1978 11.
"(1) Any contract, in so far as it relates to a licence under a patent to make, use, exercise, [or] dispose of, offer to dispose of, or import apatented invention, shall terminate on the date on which the patent, underwhich the licence was granted, expires, isrevokedorotherwiseceases to protect such invention: Provided that where the contract relates to licences under more'than one patent, such part of the contract as relates to any particular licence shall terminate when the patent under which it was granted expires, is revoked or otherwise ceases to protect the invention concerned, and that the contract as a wholeshall terminate when all the patents under which all such licences were granted and which were in force at the time when the contractbecameoperative, expire, are revoked or otherwise cease to protect the relevant inventions."
Amendment of section 58 of Act 57 of 1978 12.
a licence to use or exercise a patented process shall carry with it the right to make, use, [or]dispose of, or offer to dispose of the product of the process.
Amendment of section 61 of Act 57 of 1978 13.
Amendment of section 65 of Act 57 of 1978, as amended by section 3 of Act 76 of 1988 and section 46 of Act 38 of 1997 14.
of the words or an exclusive licensee mentioned in section 56(1 I),'.
Amendment of section 66 of Act 57 of 1978 15.
"(3) Any person who, having made a request referred to in subsection (Z), expended during the period referred to in that subsection, any money, time or labour with a view to making, using, exercising, [or]disposing of, offering to dispose of, or importing the invention, may apply in the manner prescribed to the commissioner for compensation in respect of the money, time or labour reasonably so expended, and the commissioner may issue such order as he may deem fit."
Amendment of section 69 of Act 57 of 1978 16.
that the patentee [or licensee] has failed to give such an acknowledgement.
It shall not be permitted to possess the patented invention made, used, imported or acquired in terms of sub-section (1) of any purpose other than for the development or submission of information obtaining, as contemplated in sub-section (1).