838 No. 40 of 2016] Infringement proceedings where concurrent rights exist Presumption of validity and ownership Presumption of use of patented process Patents (3) The High Court shall not make the declaration, referred to in subsection (1), if— (a) the act to which the application relates is already a subject of infringement proceedings; or (b) the person making the application fails to satisfy the Court that the person had previously written to the patentee, requesting for a written acknowledgment of whether such act is infringing or non infringing, and the patentee has failed or neglected to respond to such request within a reasonable period. (4) The High Court shall award cost for the proceedings, referred to in subsection (1), in a manner the Court considers appropriate in the circumstances. 85. (1) Where the patentee, an assignee or licensee brings proceedings for any infringement of a patent in respect of which the patentee, assignee or licensee has concurrent rights of action, the patentee, assignee or exclusive licensee need not— (a) join the other as a plaintiff; or (b) add the other as a defendant; unless the High Court otherwise orders. (2) A person who is added as a defendant, in accordance with subsection (1), shall not be liable for costs in the proceedings unless the patentee, assignee or exclusive licensee takes part in the proceedings. (3) An exclusive licensee may, if the patentee refuses or fails to commence court proceedings within three months after giving notice to the owner to commence court proceedings, commence such proceedings in the licensee’s own name, and the patentee may join in the proceedings at any time after commencement. 86. In any proceedings to enforce a patentee’s rights in accordance with this Part, it shall be presumed, unless a defendant puts the matter in issue, that in respect of the patent that is the subject matter of the proceedings, that— (a) the plaintiff is a patentee; and (b) the patent is valid. 87. Where, in infringement proceedings, an alleged infringement of a patentee’s or exclusive licensee’s right is in relation to a patented process for obtaining a product, the burden of establishing that an identical product was not made from a patented process shall lie with the alleged infringer, if a patentee or exclusive licensee proves, to the satisfaction of the High Court, that—