The Industrial Property Act, 2001
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utility model or industrial design shall have the right to be a defendant in the
proceedings.
(2) No declaration under subsection (1) shall be made: (a) if the acts to which the request relates are already the subject of
infringement proceedings; or
(b) if the person making the request is unable to prove that he has previously
demanded from the owner a written acknowledgement of the lawfulness of
the acts referred to and that the owner has refused such demand or has failed
to reply within a reasonable time.
Threat of
infringement
proceedings
108. (1) Any person threatened with infringement proceedings who can
prove that the acts performed or to be performed by him do not constitute
infringement of the patent or the registered utility model or industrial design
may request the Tribunal to grant an injunction to prohibit such threats and
to award damages for financial loss resulting from the threats.
(2) The mere notification of the existence of the patent, or the registered
utility model or industrial design registration shall not constitute a threat of
infringement.
Criminal
proceedings
109. (1) Any intentional infringement of the patent or the registered utility
model or industrial design shall constitute an offence under this Act.
(2) Such an offence upon conviction shall be punishable with a fine of not
less than one hundred thousand shillings, and not exceeding five hundred
thousand shillings, or with imprisonment for a term of not less than three
years, and not more than five years, or with both.
Presumption of
use of patented
process
110. (1) For the purpose of proceedings, other than criminal proceedings, in
respect of the infringement of the rights of the owner of the patent, where the
subject matter of the patent is a process for obtaining a product, the burden
of establishing that an identical product was not made by the patented
process shall be on the alleged infringer, if either of the following conditions
is fulfilled: (a) the product is new; or
(b) a substantial likelihood exists that the identical product was made by the
process and the owner of the patent has been unable, through reasonable
efforts, to determine the process actually used.
Legal
proceedings by
licensee
111. (1) Any exclusive licensee within the meaning of section 65(2) may, by
registered letter, request the owner of the patent or the registered utility
model or industrial design to institute legal proceedings for a specific relief
with respect to any infringement specified by the licensee.
(2) The licensee may, if the owner refuses or fails to institute the legal
proceedings within three months from the request, after giving notice to the