Section 105 Patents Act 1970 provides for DECLARATORY suits for NON-INFRINGEMENT. A person:
Amay sue any patentee to seek a declaration that he is not infringing without paying any fees (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105)
Bis barred from instituting a declaratory suit if any infringement suit is pending (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105)
Cmust first apply to the Government for permission before instituting any such suit (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105) (cf. Patents Act 1970, Section 105)
Dmay institute a suit for declaration that the use by him of any process or making/use/sale of any article does NOT infringe the patent, provided (a) he has applied in writing to the patentee for an acknowledgement and (b) patentee refused or neglected to give acknowledgement
Answer & Solution
Correct answer: D. may institute a suit for declaration that the use by him of any process or making/use/sale of any article does NOT infringe the patent, provided (a) he has applied in writing to the patentee for an acknowledgement and (b) patentee refused or neglected to give acknowledgement
1. Section 105(1) Patents Act 1970: a person may institute a suit for declaration that the use by him of any process or the making, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a patent against the patentee, on the following conditions:
2. (a) the plaintiff has APPLIED IN WRITING TO THE PATENTEE OR EXCLUSIVE LICENSEE for a written acknowledgement to the effect of the declaration claimed and has furnished full particulars in writing of the process or article in question; AND (b) the patentee or exclusive licensee has REFUSED OR NEGLECTED to give such an acknowledgement.
3. Section 105(2): costs follow ordinary rules.
4. Section 106 deals with groundless threats of infringement.
5. Hence option B is correct.
_Source: Patents Act 1970 / Copyright Act 1957 / Trade Marks Act 1999 (Bare Acts, IPIndia portal + Copyright Office) — Patents Act 1970, Section 105_
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