Subject to the provisions contained in this section, where an invention, being an improvement in or modification of another invention, is the subject of an independent patent and the patentee in respect of that patent is also the patentee in respect of the patent for the main invention, the Controller may, if the patentee so requests, by order, revoke the patent for the improvement or modification and grant to the patentee a patent of addition in respect thereof, bearing the same date as the date of the patent so revoked.
A patent shall not be granted as a patent of addition unless the date of filing of the application was the same as or later than the date of filing of the application in respect of the main invention.
A patent of shall not be granted before grant of the patent for the main invention.
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A patent of addition shall be granted for a term equal to that of the patent for the main invention, or so much thereof as has not expired, and shall remain in force during that term or until the previous of the patent for the main invention and no longer:
Provided that if the patent for the main invention is revoked under this Act, the court, or, as the case may be, the Controller, on request made to him by the patentee in the prescribed manner, may order that the patent of addition shall become an independent patent for the remainder of the term for the patent for the main invention and thereupon the patent shall continue in force as an independent patent accordingly.
No renewal fees shall be payable in respect of a patent of addition, but, if any such patent becomes an independent patent under sub-section (1), the same fees shall thereafter be payable, upon the same dates, as if the patent had been originally granted as an independent patent.
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The grant of a patent of addition shall not be refused, and a patent granted as a patent of addition shall not be revoked or invalidated, on the ground only that the invention claimed in the complete specification does not involve any inventive step having regard to any publication or use of.
(a) The main invention described in the complete specification relating thereto; or
(b) Any improvement in or modification of the main invention described in the complete specification of a patent of addition to the patent for the main invention or of an application for such a patent of addition, and the validity of a patent of addition shall not be questioned on the ground that the invention ought to have been the subject of an independent patent.
For the removal of doubts it is hereby declared that in determining the novelty of the invention claimed in the complete specification filed in pursuance of an application for a patent of addition regard shall be had also to the complete specification in which the main invention is described.
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Subject to the provisions of section 59, the Controller may, upon application made under this section in the prescribed manner by an applicant for a patent or by a patentee, allow the application for the complete specification to be amended subject to such condition ‘ if any, as the Controller thinks fit:
Provided that the Controller shall not pass any order allowing refusing application to amend an application for a patent or a specification under this section while any suit before a court for infringement of the patent or any proceeding before the Appellate Board for the revocation of the patent is pending, whether the suit or proceeding commenced before or after the filing of the application to amend.
Every application for leave to amend an application for a patent or a specification under this section shall state the nature of the proposed amendment, and shall give full particulars of the reasons for which the application is made.
Any application for leave to amend an application for a patent or a complete specification or a document related thereto under this section made after the grant of patent and the nature of the proposed amendment may be published.”
Where an application is published under sub-section (3), any person interested may, within the prescribed period after the publication thereof, give notice to the Controller of opposition thereto; and where such a notice is given within the period aforesaid, the Controller shall notify the person by whom the application under this section is made and shall give to that person and to the opponent an opportunity to be heard before he decides the case.
An amendment under this section of a complete specification may be, or include, an amendment of the priority date of a claim.
In any proceeding before the Appellate Board or the Appellate Board for the revocation of a patent, the Appellate Board or the Appellate Board, as the case may be, may, subject to the provisions contained in section 59, allow the patentee to amend his complete specification in such manner and subject to such terms as to costs, advertisement or otherwise, as the Appellate Board or the Appellate Board may think fit, and if in any proceedings for revocation the Appellate Board or the Appellate Board decides that the patent is invalid, it may allow the specification to be amended under this section instead of revoking the patent.
The Appellate Board or the Appellate Board to the Controller who Kail thereof, causes an entry thereof and reference thereto made in the register.
No amendment of an application for a patent or complete specification shall be made except by way of disclaimer, correction or explanation, and no amendment thereof shall be allowed, except for the purpose of correcting an obvious mistake, and no amendment of a complete specification shall be allowed the effect of which would be that me specification as amended would claim or describe matter not in substance disclosed in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specification before the amendment.
Where after the date of grant of patent any amendment of the specification or any other documents related thereto is allowed by the Controller or by the Appellate Board or the Appellate Board, as the case may be, the amendment shall for all purposes be deemed to form part of the specification along with other documents related thereto; the fact that the specification or any other documents related thereto has been amended shall be published as expeditiously as possible; and the right of the applicant or patentee to make amendment shall not be called in question except on the ground of fraud.
In construing the specification as amended, reference may be made to the specification as originally accepted.
If, after hearing the applicant in cases where the applicant so desires or the Controller thinks fit, the Controller is prima facie satisfied that the failure to pay the renewal fee was unintentional and that there has been no undue delay in the making of the application, he shall publish the application in the prescribed manner; and within the prescribed period any person interested may give notice to the Controller of opposition thereto on either or both of the following grounds, that is to say
(a) That the failure to pay the renewal fee was not unintentional; or
(b) That there has been undue delay in the making of the application.
If notice of opposition is given within the period aforesaid, the Controller shall notify the applicant, and shall give to him and to the opportunity to be heard before he decides the case.
If no notice of opposition is given within the period aforesaid or if in case of opposition, the decision of the Controller is in favour of the where an application for an order under this section is made to the Appellate Board or the Appellate Board, the applicant shall give notice of the application to the Controller, and the Controller shall be entitled to appear and be heard, and shall appear if so directed by the Appellate Board or the Appellate Board.
applicant, the Controller shall, upon payment of any unpaid application under sub-section (1) shall contain a statement and such additional fee as may be prescribed, restore the patent and out the nature of the applicant’s interest together with such particulars patent of addition specified in the application which has ceased to prescribed and the facts upon which the application is based, effect on that patent.
The Controller, if satisfied that the reasonable requirements of the Controller may, if he thinks fit as a condition with respect to the patented invention have not been satisfied or that patent, require that an entry shall be made in the register of any patented invention is not worked in the territory of India or that the or matter which, under the provisions of this Act, has to be entered in a Rented invention is not available to the public at a reasonably affordable register but which has not been so entered 3 may grant a license upon such terms as he may deem fit.
Where a patent is restored, the rights of the patentee shall in considering the application filed under this section, the Controller subject to such provisions as may be prescribed and to such shall take into account.
The nature of the invention, the time which has provisions as the Controller thinks fit to impose for the protection elapsed since the sealing of the patent and the measures already taken compensation of persons who may have begun to avail themselves of the patentee or any licensee to make full use of the invention have taken definite steps by contract or otherwise to avail themselves ability of the applicant to work the invention to the public advantage; the patented invention between the date when the patent ceased to capacity of the applicant to undertake the risk in providing capital and effect and the date of the publication of the application for restoration working the invention, if the applications were granted; as to whether the patent under has made efforts to obtain a license from the patentee on respect of an infringement of a patent committed between the date the Controller may deem fit: which the patent ceased to have effect and the date of the publication! Provided that this clause shall not be applicable in case of national the application for restoration of the patent.