No. 4907
Act No. 1, 2012
Government Gazette 23 March 2012
33
INDUSTRIAL PROPERTY ACT, 2012
(3)
If an annual fee is not paid in accordance with the provisions of
subsection (1) or before the expiration of six months referred to in subsection (2), the
patent application is deemed to have been withdrawn or the patent lapses.
Restoration
47.
(1)
Where a patent application or a patent has lapsed owing to the
non-payment of any prescribed annual fee within the prescribed period or the grace
period referred to in section 46, the owner of the application or the patent may in the
prescribed manner and on payment of the prescribed fee, apply to the Registrar for the
restoration of the application or the patent.
(2)
If the Registrar is satisfied that the omission was unintentional and that
no undue delay has occurred in the making of the application, he or she must publish
the application for restoration in the bulletin in the prescribed manner, and thereupon
any person may within such period as prescribed, give notice in the prescribed manner
of opposition to the restoration of the application or the patent.
(3)
If there is no opposition as provided for in subsection (2), or if there is
opposition and the Registrar is satisfied that such opposition is without merit, he or she
must restore the application or the patent.
(4)
Any such restoration of the application or the patent is subject to the
payment of such annual fees as contemplated in section 46 as remain unpaid at the date
of the restoration and any additional administrative charges incurred by the Registrar or
penalty fees as may be prescribed.
(5)
If there is opposition as provided for in subsection (2) and the Registrar
is satisfied that the opposition has merit, he or she must refuse to restore the application
or the patent.
(6)
The owner of a patent restored in accordance with subsections (1) to
(4) is not entitled, in terms of the provisions of section 41, to institute any proceedings
against or recover damages from any person who exploited the patented invention after
the lapse of a period of six months from the date on which the annual fee was due and
before the date on which the request for restoration was advertised, or who commenced
exploitation of the patented invention during the aforesaid period and thereafter
continues to exploit the patented invention.
(7)
Where a patent application or a patent has been restored in accordance
with subsections (1) to (4), any person who during the period referred to in subsection
(6) expended any money, time or labour with a view to exploiting the patented invention
and who is prevented from such exploitation by the restoration of the patent, may apply
to the Tribunal for compensation to be paid by the owner of the patent in respect of the
money, time and labour so expended.
(8)
If the owner fails to pay the compensation, if any, found to be payable
by the Tribunal, the patent application or the patent lapses.