21[CHAPTER III A

EXCLUSIVE MARKETING RIGHTS

33A. Filling of application— An application for grant of a patent in respect of an invention covered under sub-section (2) of section 5 shall be made to the Controller in Form 1 along with the fees as specified in the First Schedule.

33B. The application for grant of exclusive marketing right— An application for grant of exclusive right to sell or distribute the article or substance shall be made to the Controller in Form 27 along with the fees as specified in the First Schedule and the Controller shall notify the filing of the application in the Official Gazette and to the authority of the Central Government that is responsible for the grant of approval to sell or distribute the article or the substance for which the application is being made.

33C. Controller to refer application— On receipt of an application under rule 33B, the Controller shall refer the application relating to the patent to an Examiner for making a report to him.

33D. Report of Examiner— The Examiner to whom an application has been referred shall ordinarily make the report to the Controller within a period of ninety days from the date of such reference.

33E. Notifying of grant or refusal of exclusive marketing rights— When the Controller grants or refuses an application for grant of exclusive right to sell or distribute the article or substance, he shall notify the same in the Official Gazette and to the authority of Central Government that has granted approval to sell or distribute the article or the substance.

33F. Personal documents, etc. in relation to inventions— The recording in a document relating to specifications and trial or use as referred to in sub-section (2) of section 24B shall include public document, public trial or use but shall not include a personal document or secret trial or use.

33G. Appropriate tests— The appropriate tests conducted on or after the 1^st day of January, 1995 and referred to in section 24B shall be the tests either the whole or a part of which had been conducted for the purposes of this Chapter.

33H. Form for grant of exclusive marketing rights— Exclusive marketing rights shall be granted in ¹²[Form 28].

33-I. Application for compulsory license to sell or distribute or for revocation of exclusive marketing rights— (1) An application to the Controller for an order under section 84, section 89, or section 97, as modified by section 24C, shall be in Form 18 or, as the case may be in Form 20, to be modified as deemed necessary. Except in the case of an application made by the Central Government, the application shall set out the nature of the applicant’s interest and the terms and conditions of the license to which the applicant is willing to accept.

(2) For the purpose of sub-section (4) of section 84, as modified by section 24(C), the Controller may call for statements and evidences from the applicant.

(3) On receiving an order from the Controller, the applicant shall furnish the statement and evidences within a period of ninety days from the date of the order of the Controller.

33J. When a prima-facie case is not made out— (1) If upon consideration of the evidence, the Controller is satisfied that a prima-facie case has not been made out for making an order under any of the sections referred to in rule 33I, he shall notify the applicant accordingly. Unless the applicant makes a request to be heard in the matter, the Controller shall refuse the application after the expiry of a period of thirty days from the date of receipt of the notice by the applicant.

(2) If the applicant makes a request for hearing within the time allowed under sub-rule (1) the Controller shall, after giving the applicant an opportunity of being heard, determine whether the application may be proceeded with or it shall be refused.

33K. Notice of opposition against grant of compulsory license or revocation of exclusive marketing rights— (1) A notice of opposition under sub-sections (2) of Section 92, as modified by section 24C shall be given in Form 14 and shall be sent to the Controller within ninety days from the date of the advertisement of the application under sub-section (1) of the said section.

(2) The notice of opposition referred to in sub-rule (1) shall include the terms and conditions of the license, if any, which the opponent is prepared to grant to the applicant and shall be accompanied by evidence in support of opposition.

(3) The Controller may by order call for further evidence from the opponent if he desires so.

(4) On receipt of the order under sub-rule (3), the opponent shall furnish the further evidence within a period of ninety days from the date of such receipt.

(5) The opponent shall serve a copy of his notice of opposition and evidence on the applicant and notify the Controller when such service has been effected.

(6) No further statement or evidence shall be delivered by either party except by leave of or on requisition by the Controller.

(7) The Controller shall thereafter appoint a date and time for the hearing of the case and shall give the parties not less than ten days notice of such hearing.

(8) The procedure specified in sub-rules (2) to (5) of rule 44, shall, so far as may be, apply to the procedure for hearing under this rule, as they apply to the hearing of opposition to the grant of patents.

(9) The provisions of clause (f) of sub-section (1) of section 77 for review of the decision of the Controller shall be applicable to any decision of the grant or refusal to grant of compulsory licence by the Controller.

(10) When the opponent makes the application for review of the decision of the Controller, the Controller shall suspend the operation of the decision for which the review is being requested till the disposal of the application for review.

33L. Manner of advertisement of the order for revocation of exclusive marketing rights— The Controller shall advertise, in the Official Gazette, the order made by him under sub-section (3) of section 89 as modified by section 24C, for revoking exclusive marketing rights to sell or distribute the article or substance.

33M. Application for the revision of the terms and conditions of a license— (1) An application under sub-section (5) of section 93 as modified by section 24C for the revision of the terms and conditions of a license which has been settled by the Controller shall be in Form 21 as may be modified as deemed necessary and shall state the facts relied upon by the applicant and the relief he seeks and shall be accompanied by evidence in support of the application.

(2). If the Controller is satisfied that a prima facie case has not been made out for the revision of the terms and conditions of the license, he may notify the applicant accordingly and unless within a period of thirty days the applicant requests to be heard in the matter, the Controller may refuse the application.

(3) The Controller, after giving the applicant an opportunity of being heard, shall determine whether the application shall be proceeded with or it shall be refused.

(1) If the Controller allows, the application to be proceeded with, he shall direct the applicant to serve copies of the application and of the evidence in support thereof upon the holder of exclusive marketing rights or upon any other person on whom, in his opinion, such copies should be served.

(2) The applicant shall inform the Controller the date on which the service of copies of application and of the evidence on the holder of exclusive marketing right and other persons referred to in sub-rule (1) has been effected.

(3) The holder of the exclusive marketing right of any other person on whom copies of the application and of the evidence have been served may give the Controller a notice of opposition in Form 14 as may be modified as deemed necessary, within sixty days from the date of such service. Such

notice shall contain the grounds relied upon by the opponent and shall be accompanied by evidence in support of the opposition.

(4) The opponent shall serve copies of the notice of opposition and his evidence on the applicant and inform the Controller the date on which service has been made.

(5) No further evidence or statement shall be filed by either party without special leave of or on requisition by the Controller.

(6) On completion of the proceedings specified under sub-rule (1) to (5) or at such other time as he may deem fit, the Controller shall appoint a date and the time for the hearing of the case and shall give the parties not less than ten days notice of such hearing.

(7) The procedure specified in sub-rules (2) to (5) of rule 44 shall, so far as may be, apply to the procedure for hearings under this rule as they apply to the hearing of opposition to the grant of a patent.

(8) If the Controller decides to revise the terms and conditions of license he shall amend the license granted to the applicant in such manner as he may deem necessary.

33-O. Reference to public interest— Reference to public interest in sub-section (1) of section 24D shall mean the requirement of the public in a national emergency or other circumstances of extreme urgency

33P. Register of exclusive marketing rights— (1) There shall be kept at the head office of the patent office a register to be called the Register of exclusive marketing rights and a copy thereof shall be available at each of the branch offices and all entries relating to exclusive marketing rights shall be made therein.

(2) The Register kept under sub-rule (1) shall be open to the public on a request to be made to that effect to the Controller in writing.

(3) Certified copy of any entry in the Register of exclusive marketing rights thereof shall be supplied on a request therefor made to that effect to the Controller.]

2 Insertion by S.O. 2908 dated 31-07-1976, w.e.f 14-08-1976.