payment, the commissioner may, if he thinks fit, refuse to award any
damages in respect of the infringement.
(5)
67.
68.
Where an amendment of a specification has been allowed under
section 51, the commissioner may in his discretion refuse to award
damages in respect of any acts of infringement committed before that
amendment was so allowed and, in exercising his discretion, the
commissioner may take into consideration the conduct of the patentee
in framing the specification and permitting it to remain in its
unamended form.
Presumptions in relation to new substances.
(1)
A claim in respect of a patent for a process or an apparatus for
producing any product shall be construed as extending to such
product when produced by the process or apparatus claimed.
(2)
If the invention for which a patent is granted is a process for obtaining
a new product, the same product produced by a person other than the
proprietor of the patent or a licensee under that patent shall, unless
the contrary is proved, be deemed, in any proceedings, to have been
obtained by that process.
(3)
In considering whether any person has discharged the onus imposed
upon him by subsection (2), the commissioner shall not require him to
disclose any secret process used by him in producing the product
concerned, if it appears to the commissioner that it would be
unreasonable to do so.
Relief for infringement of partially valid specification.
Where in any proceedings for infringement of a patent, the commissioner
finds that any claim in the complete specification in respect of which
infringement is alleged, is valid, but that any other claim therein is invalid, the
following provisions shall, notwithstanding anything contained in section
66 (5), apply, namely—
(a)
If a counterclaim for the revocation of the patent has been made in the
proceedings on the ground of the invalidity of any claim in the
specification, the commissioner may postpone the operation of any
order issued thereon for such time as may be required to enable the
patentee to effect any amendment of the specification pursuant to the
conditions imposed by the commissioner, who may attach such other
condition to any order to be issued on the counterclaim as he may
deem fit; and
(b)
when the specification has been amended in terms of paragraph (a),
the commissioner may, subject to such order as to costs as he may
issue and as to the date from which damages shall be calculated,
grant relief in respect of any claim which had, before the amendment,
been found to be valid and infringed, and in exercising his discretion
he may take into consideration the conduct of the patentee in inserting
in the specification those claims which had been found, before
amendment, to be invalid or permitting such claims to remain there.
69.
Declaration as to non-infringement.