*[104A. Burden of
proof in case of suits concerning infringement.-(1)
In any suit for infringement of a patent, where the subject
matter of patent is a process for obtaining a product, the
court may direct the defendant to prove that the process used
by h m to obtain the product, identical to the product of
the patented process, is different from the patented process
if,-
(a) the subject matter of the patent is a process for obtaining
a new product; or
(b) there is a substantial likelihood that the identical
product is made by the process, and the patentee or a person
deriving title or interest in the patent from him, has been
unable through reasonable efforts to determine the process
actually used:
Provided that the patentee or a person deriving title or
interest in the patent from him, first proves that the product
is identical to the product directly obtained by the patented
process.
(2) In considering whether a party has discharged the burden
imposed upon him by sub-section (1), the court shall not require
him to disclose any manufacturing or commercial secrets, if
it appears to the court that it would be unreasonable to do
so.]
*[Inserted by Patents (Amendment) Act, 2002, section 43]
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