The Industrial Property Act, 2001 52 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