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CS Professional · Intellectual Property Rights - Law and Practice · Patent Documentation, Examination and Infringement

Nila Chemicals' patent specification was published. After publication, it was allowed to amend the specification by way of disclaimer, decided on 1 September. It sues Pavan Industries for use of the invention in June, before that date. Which statement is correct about damages or account of profits for the June use?

Damages or account of profits for use before the date of the amendment decision are not granted unless the court is satisfied that the originally published specification was framed in good faith and with reasonable skill and knowledge. The court's power to grant an injunction remains unaffected.

  1. ANot granted at all, under any circumstances, and an injunction is also barred
  2. BGranted automatically, since the amendment relates back to the filing date
  3. CNot granted unless the court is satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledgeCorrect
  4. DGranted only if Pavan Industries was aware of the patent number in June

Explanation

Section 111(3): where an amendment by disclaimer, correction or explanation is allowed after publication, no damages or account of profits are granted for use before the decision date unless the court is satisfied the original specification was framed in good faith and with reasonable skill and knowledge. Option 1 is wrong since s.111(4) preserves injunctions and the good-faith exception exists.

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