Document ID: chunk:federal_register_of_legislation:C2004A04827:body:0:p2
Version: federal_register_of_legislation:C2004A04827
Segment Type: other
Provision Reference: 
Character Range: 2363–5029

by this Part has effect in relation to the patent as if:

     (a) no action had been taken in respect of the patent under the repealed Division; and

  (b) the extension had not been granted.

Transitional

  8.(1) On the commencement of this section:

     (a) any application (under section 70 of the Principal Act) for the extension of the term of a transitional standard patent that had not yet been determined by the Commissioner under section 75 of the Principal Act is taken to have been withdrawn; and

     (b) no action is to be taken under the Principal Act in respect of the application.

  (2) On the commencement of this section:

  (a) any appeal under paragraph 78(a) or (b) of the Principal Act:

      (i) relating to a transitional standard patent; and

      (ii) that had not yet been determined by the Federal Court;

     is taken to have been withdrawn; and

     (b) no action is to be taken in respect of such an appeal except the making of any order about costs that the Federal Court may think proper in the circumstances of the case.

  (3) After the commencement of this section:

     (a) an application may not be made under section 70 of the Principal Act for the extension of the term of a transitional standard patent; and

     (b) an appeal may not be made to the Federal Court under paragraph 78(a) or (b) of the Principal Act in relation to an application for the extension of the term of a transitional standard patent.

PART 3—INFRINGEMENT

9. After section 121 of the Principal Act the following section is inserted:

Burden of proof—infringement of patent for a process

"121A.(1) This section applies only to a patent for a process for obtaining a product.

"(2) If, in proceedings for infringement of a patent started by the patentee or the exclusive licensee:

    (a) the defendant alleges that he or she has used a process different from the patented process to obtain a product ('defendant's product') identical to the product obtained by the patented process; and

  (b) the court is satisfied that:

        (i) it is very likely that the defendant's product was made by the patented process; and

        (ii) the patentee or exclusive licensee has taken reasonable steps to find out the process actually used by the defendant but has not been able to do so;

    then, in the absence of proof to the contrary the onus for which is on the defendant, the defendant's product is to be taken to have been obtained by the patented process.

"(3) In deciding how the defendant is to adduce evidence for the purposes of subsection (2), the court is to take into account the defendant's legitimate interests in having