(2) Notwithstanding anything contained m sub-section (2) of section 12, the Controller shall not, under that sub-section, refer an application in respect of a claim for a patent covered under subsection (2) of section 5 to an examiner for making a report till the 31st day of December, 2004 and shall, where an application for grant of exclusive right to sell or distribute the article or substance in India has been made in the prescribed form and manner and on payment of prescribed fee, refer the application for patent, to an examiner for making a report to him as to whether the invention fa not an invention within the meaning of this Act in terms of section 3 or the invention is an invention for which no patent can be granted ip terms of section 4.
(2) Where the Controller, on receipt of a report under subsection (1) and after such other investigation as he may deem neces- •̂ "•y, is satisfied that the invention is not an invention within the meaning of this Act in terms of section 3 or the invention is an invention for which no patent can be eranted in terms of seciion 4. he shall reject the application for exclusive right to sell or distribute the article or substance.
(3) In a case where an application for exclusive right to sell or distribute an article or a substance is not rejected by the Controller on receipt of a report under sub-section (2) and after such other investigation, if any, made by him, he may proceed to grant exclusive ri>?ht to sell or distribute the article or substance in the manner provided in section 24B.
SEC 1] THE GAZETTE OF INDIA EXTRAORDINARY 3
24B. (!) Where a daim for patent covered under sub-section
(2) of section 5 has been made and the applicant has,—
(a) where an invention has been made in a country other than India and before filing such a claim, filed an application for the same invention claiming identical article or substance in a convention country on or after the 1st day of January, 1995 and the patent on the basis of appropriate tests conducted in that country has been granted on or after the date of making a claim for patent covered under sub-section (2) of section 5; or
(6) where an invention has been made in India and before filing such a claim, made a claim for patent on or after the 1st day of January, 1995 for method or process of manufacture for that invention relating to identical article or substance and has been granted the patent therefor on or after the date of making a claim for patent covered under sub-section (2) of section 5, and has received the approval to sell or distribute the article or substance from the authority specified in this behalf by the Central Government, then, he shall have the exclusive right by himself, his agents or licensees to sell or distribute in India the article or the substance on and from the date of approval granted by the Controller in this behalf till a period of five years or till the date of grant of patent or the date of rejection of application for the grant of patent, whichever is earlier.
(2) Where, the specifications of an invention relatable to an article or a substance covered under sub-section (2) of section 5 have been recorded in a document or the invention has been tried or used, or, the article or the substance has been sold, by a person, before a claim for a patent of that invention is made in India or in a convention country, then, the sale or distribution of the article or sub^ stance by such person, after the claim referred to above is made, shall not be deemed to be an infrigement of exclusive right to sell or distribute under sub-section (1):
Provided that nothing in this sub-section shall apply in a case where a person makes or uses an article or a substance with a view to selling or distributing the same, the details of invention relatable thereto were given by a person who was holding an exclusive right to sell or distribute the article or substance.
Guam of exclusive Hfifetfl.
24C. The provisions in relation to compulsory licences in Chapter XVT shall, subject to the necessary modificat;ons, apply in relation to an exclusive right to sell or distribute under section 24B as they aPPly t 0 , and in relation to, a right under a patent to sell or distribute and for that purpose the following modifications shall be deemed to have been made to the provisions of that Chapter and all their grammatical variations and cognate expressions shall be consirued accordingly, namely: —
(a) throughout Chapter XVI, working of the invention shall be deemed to be selling or distributing the article or substance;
Compulsory licences.
4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) three years from the date of sealing of a patent in section &4 shall be deemed to be two years from the date of approval by the Controller for exclusive right to sell or distribute under section 24B;
(c) the time which has elapsed since the sealing of the patent under section S& shall be deemed to be the time which has elapsed since the approval by the Controller for exclusive right to sell or distribute under section 24B;
(d) clause (d) and clause (e) of section 90 shall be omitted;
Special provision for selling or distribution.