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Legislative Implementation of Flexibilities - Sri Lanka

Title:Sections 73 and 78 of the Intellectual Property Act No. 36 of 2003
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

73. (1) Every applicant shall furnish, within the prescribed period, a report, which if not in English shall be accompanied by a translation thereof in English, of a search which shall conform such type as may be prescribed :

Provided, however, that in lieu of the said search an applicant may request the Director-General to refer the application to a local examiner who shall examine the application on the basis of any claim with due regard to the description and the drawings, if any, and furnish a report to the Director-General within the prescribed period, on the relevant prior art, after making the required effort to discover as much of the relevant prior art as facilities permit ; and for the purposes of the search the local examiner shall make reference to every documentation on prior art available to him.

(2) The applicant shall, when requiring the Director- General to refer his application to a local examiner, forward such application with the prescribed fee to Director-General.

(3) (a) The applicant shall, at the request of the Director- General, furnish him with the following documents in respect of any foreign application for a patent filed by him abroad relating to the same or essentially the same invention as that claimed in the application filed under this Act

(i) a copy of any communication received by the applicant concerning the results of any search or examination carried out in respect of the foreign application ;

(ii) a copy of the patent granted on the basis of the foreign application ; and

(iii) a copy of any final decision rejecting the foreign application or refusing the grant of a patent requested in the foreign application.

(b) The applicant shall, at the request of the Director-General, furnish him with a copy of any final decision invalidating the patent granted on the basis of the foreign application referred to in paragraph (a).

(4) For this purposes of the section "local examiner" means any skilled person to whom the Director-General may refer questions concerning patents.

Examination of applications &c.

78. (1) The Director-General shall examine the application and shall satisfy himself as to the fulfilment of the following :

(a) where applicable, the requirements of paragraph (b) of subsection (1) of section 71 ;

(b) the requirements of paragraph (a) of subsection (2) of section 71 ;

(c) where applicable, the requirements of paragraph (b) of subsection (2) of section 71 ;

(d) the description, the claims and where applicable, the drawings, which comply with the prescribed requirements ;

(e) the essential elements of the invention claimed in the application have not been unlawfully derived from a patent already granted in Sri Lanka ;

(f) the application contains an abstract ;

(g) the search report referred to in section 73 has been submitted.

(2) Where the Director-General finds that the conditions referred to in subsection (1) are not fulfiled he shall request the applicant to file the required correction within a period of three months from the date of such request ; where the applicant fails to so comply the application shall, subject to the provisions of subsection (3), be rejected.

(3) Where no correction is provided in response to a request under subsection (2), the Director-General shall, on payment of the prescribed fee within the prescribed period, include the corrections into the application and if the prescribed fee is not paid within the prescribed period the application shall be rejected.

(4) Where the Director-General finds that the essential elements of an invention claimed in an application are unlawfully derived from a patent already granted in Sri Lanka, such application shall be rejected.

(5) The Director-General shall notify the applicant of any decision under subsections (2), (3) and (4) and any decision taken to reject the application shall be in writing stating the reasons for such rejection.

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