Patents [No. 40 of 2016 (a) the product is new; or (b) a substantial likelihood exists that the identical product was made by the process and the patentee has been unable, through reasonable efforts, to determine the process actually used. 88. (1) In proceedings to enforce a patentee’s right, in accordance with this Part, evidence may be submitted by affidavit asserting relevant facts showing that— (a) a patentee is the owner of the patent; and (b) the invention is protected by a patent. (2) Where the High Court considers, on the application of a party, that the deponent to an affidavit should be available to be cross-examined with respect to matters asserted in the affidavit, the Court shall order that such a deponent appear to be crossexamined. (3) If a deponent does not appear to be cross-examined as required in subsection (2), the Court shall not admit the matters asserted in the affidavit into evidence. 89. (1) Where a person, by means of circulars, advertisements or otherwise, threatens another person with proceedings in respect of an infringement as specified in this Part, whether or not the person making the threat is a patentee, the High Court may, on the application of a person aggrieved, do any of the following: (a) declare that the threat is unjustified; (b) grant an injunction against the continuance of the threat; or (c) award compensation for any damage sustained. (2) The High Court shall not make any order, as specified in subsection (1), if the defendant satisfies the Court that the acts in respect of which the proceeding was threatened constituted, or would constitute, an infringement of a patentee’s right as specified in this Part. (3) The mere notification of the existence of a right, as specified in this Part, shall not constitute a threat of a proceeding for the purposes of subsection (1). (4) An application under this section may not be brought where the threat is to bring a proceeding for an infringement that is alleged to consist of making or importing anything. (5) Nothing in this section shall render a practitioner liable to an action in respect of an act done by the practitioner in a professional capacity on behalf of a client. 839 Affidavit evidence Groundless threat of infringement proceedings