Commonwealth Numbered Acts

PATENTS (WORLD TRADE ORGANIZATION AMENDMENTS) ACT 1994 No. 154, 1994 - SECT 9

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 business and manufacturing secrets protected.".