No. 45/1947:

INDUSTRIAL AND COYMRCIAL PROPERTY (PROTECTION) (NEUCHATEL AGREEMENT) ACT, 1947

ARRANGEMENT OF SECTIONS

1 Construction.

2 Priority under international arrangements.

3 General powers to extend time limits.

4 Restoration of patents.

5 Extension of period of copyright in designs.

6 Restoration of trade marks to register.

7 Abandoned or void patent applications.

8 Restriction of section 43 of Principal Act.

9 Restriction of section 75 of Principal Act.

10 Restriction of section 111 of Principal Act.

11 Continued exploitation of inventions and designs.

12 Short title and collective citation.

AN ACT TO AMEND THE INDUSTRIAL AND COMMERCIAL PROPERTY (PROTECTION) ACTS, 1927 AND 1929, FOR THE PURPOSE OF IMPLEMENTING AN INTERNATIONAL AGREEMENT, SIGNED AT NEUCHATEL ON THE 8TH DAY OF FEBRUARY, 1947, FOR THE PRESERVATION OR RESTORATION OF RIGHTS OF INDUSTRIAL PROPERTY AFFECTED BY THE SECOND WORLD WAR.

[23rd December, 1947.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1.—(1) In this Act—

the expression "the Principal Act" means the Industrial and Commercial Property (Protection) Act, 1927 (No. 16 of 1927);

the expression "the Acts" means the Industrial and Commercial Property (Protection) Acts, 1927 and 1929;

the expression "Convention country" means a foreign state to which section 152 of the Principal Act applies;

the expression "Convention application" means an application claiming priority under section 152 of the Principal Act.

(2) The Acts and this Act shall be construed as one.

2.—(1) The Controller may extend the time for making a Convention application until a date not later than the 30th day of June, 1948, in any case in which the first application was filed in a Convention country not later than the 31st day of December, 1946, and the relevant period specified in paragraph (a), (b) or (c) of subsection (1) of section 152 of the Principal Act expired on or after the 3rd day of September, 1939, and before the 1st day of January, 1948.

(2) ( a ) Where an application for a patent or for the registration of a design or trade mark has been made or is made not later than the 30th June, 1948, and the applicant desires to convert the application into a Convention application made by virtue of subsection (1) of this section, a request in writing for the conversion of the application into a Convention application may be made, and the prescribed information and documents may be filed at any time before the acceptance of the complete specification, in the case of a patent, or the registration of the design or the acceptance of the trade mark application.

( b ) If the Controller allows the conversion he may require a new application form to be filed in substitution for the application form previously filed, and may make or allow to be made such amendments in the application documents as are necessary to convert the application into a Convention application.

(3) Where a Convention application made by virtue of this section is in order for the sealing of a patent thereon, or the patent thereon has been sealed, and a patent for an identical invention has previously been applied for by or granted to the same applicant, the Controller may refuse to seal a patent on the previous application or may make an order for the revocation of the existing patent.

(4) Where a design forming the subject of a Convention application made by virtue of this section is about to be registered or has been registered, and an application for registration of an identical design has previously been made by, or a certificate of registration has previously been granted to, the same applicant, the Controller may refuse to register the design previously applied for or may make an order for the cancellation of the existing registration.

(5) section 152 of the Principal Act and this section shall be construed as one.

3.—(1) Any time fixed by or under the Acts in relation to the renewal of protection of an invention, design or trade mark, protection for which ceased during the period beginning on the 3rd day of September, 1939, and ending on the 30th day of June, 1947, may, at the discretion of the Controller, be extended to a date not later than the 30th day of June, 1948, on the application of the patentee or registered proprietor, or his legal representative or assignee.

(2) The Controller may extend until a date not later than the 30th June, 1948, subject to such conditions as he may think fit to impose, the time limited by or under the Acts or the rules made thereunder within which any act, formality or obligation required thereunder may be accomplished, fulfilled or satisfied.

(3) Any extensions of time granted under this Act shall be allowed without fee or penalty of any kind.

4.—Where an extension of time is allowed under section 3 of this Act for the payment of renewal fees in relation to a patent which has ceased under section 33 of the Principal Act, the patent shall, on payment of the fees within the extended time, be restored by order of the Controller.

5.—Where an extension of time is allowed under section 3 of this Act for the payment of renewal fees for the extension of the period of copyright in a registered design which has expired under section 70 of the Principal Act, the Controller shall, on payment of the fees within the extended time, extend the period of copyright as provided in that section.

6.—Where an extension of time is allowed under section 3 of this Act for the payment of fees for the renewal of the registration of a trade mark which has been removed from the register under section 107 of the Principal Act, the Controller shall, on payment of the fees within the extended time, restore the trade mark to the register.

7.—(1) Where an application for a patent was deemed to have been abandoned under section 16 or became void under section 18 of the Principal Act, during the period beginning on the 3rd day of September, 1939, and ending on the passing of this Act by reason only of the failure of the applicant or of the Controller to comply with any requirement as to time limits of the Acts or the rules made thereunder, the Controller may, up to a date not later than the 30th day of June, 1948, permit the application to proceed.

(2) An application permitted, under this section, to proceed shall be treated as not having been abandoned or become void and the Controller may allow such extensions as he may think fit of the times limited by or under the Acts or rules in relation to the application.

8.—(1) The operation of section 43 of the Principal Act (which relates to abuse of monopoly rights under a patent) is hereby suspended until the 1st day of July, 1949.

(2) In the application of the proviso to paragraph (a) of subsection (2) of section 43 of the Principal Act, the period beginning on the 3rd day of September, 1939, and ending on the 30th day of June, 1947, shall be disregarded.

9.—(1) The operation of paragraph (b) of subsection (1) of section 75 of the Principal Act (which relates to cancellation of registered designs) is hereby suspended until the 1st day of July, 1949.

(2) In the application of the proviso to subsection (1) of section 75 of the Principal Act, the period beginning on the 3rd day of September, 1939, and ending on the 30th day of June, 1947, shall be disregarded.

10.—(1) The operation of section 111 of the Principal Act (which relates to non-user of registered trade marks) is hereby suspended until the 1st day of July, 1949.

(2) In the application of subsection (1) of section 111 of the Principal Act the period beginning on the 3rd day of September, 1939, and ending on the 30th day of June, 1947, shall be disregarded.

(3) Where an application under section 111 of the Principal Act to take a trade mark of the register in respect of any of the goods for which it is registered is made before the 30th day of June, 1952, the application may be granted on the ground that there has been no bona fide user of the trade mark in connection with such goods during a composite period equal to five years comprising—

(i) the period beginning on the 1st day of July, 1947, and ending on the day of the application, and

(ii) a period immediately preceding the 3rd day of September, 1939.

11.—(1) Where, during the period beginning on the 3rd day of September, 1939, and ending on the 31st day of December, 1946, a person has undertaken in good faith the exploitation of an invention or design, he, or his legal representative or assignee, may continue to do so notwithstanding the grant of a patent for the invention or the registration of the design pursuant to an application made by virtue of section 2 or the restoration of a patent for the invention under section 4 or the extension of copyright in the design under section 5 of this Act.

(2) For the purposes of subsection (1) of this section any person who proves that the invention was independently invented by him and who has filed an application for a patent between the 3rd September, 1939, and the 1st January, 1946, or his legal representative or assignee may be treated as an exploiter in good faith, although he has not effectively exploited the invention, if the exploitation was prevented by the war.

(3) Any patent granted or design registered pursuant to an application made by virtue of section 2, any patent restored under section 4, and any design, the period of copyright in which is extended under section 5, of this Act shall be subject to the rights conferred by subsection (1) of this section.

12.—(1) This Act may be cited as the Industrial and Commercial Property (Protection) (Neuchatel Agreement) Act, 1947 .

(2) The Acts and this Act may be cited together as the Industrial and Commercial Property (Protection) Acts, 1927 to 1947.