Commonwealth Consolidated Acts

PATENTS ACT 1990 - SECT 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.