Aonia Masood

My Legal Blog

Section 26 of The Patent of Ordinance 2000- Resident in Pakistan — September 17, 2016

Section 26 of The Patent of Ordinance 2000- Resident in Pakistan

The law of Pakistan, under section 26 of the Patent Ordinance 2000, necessitates that any Pakistani resident before filing or causing to be filing the foreign patent application should first obtain foreign filling license i.e., written authority from the controller of patents. Otherwise, he should wait at least six weeks for filing foreign application after the date of first filing of patent application in Pakistan. The provision in ordinance has been incorporated under the chapter related to the secrecy of the certain inventions for the purpose of security of the state and therefore the same has to be read in the light of previous section.  The contrivance allows the government to assess or check if the information related to invention being exported out of Pakistan could threaten the national security; the provision is similar to the patent legislation adopted by foreign countries i.e.,   Section 34 of Singapore Patent Acts 1994, 35 USC 184 in the US Patent Act, and Section 23 of the UK Patent Act.

 The term “Resident” used in section 26 provides the basis for the interpretation of the said provision; the place of the person filing the application is kept in focus here while the place of creation of the invention remains completely immaterial. However, the said term  has not been defined anywhere in the ordinance or related rules which might render the provision ambiguous. In American case Hanson v. P.A Peterson Home Ass’n, word “resident” was defined as follows:

“Any person, who occupies a dwelling within the state, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other merely transitory in nature. The word ‘resident ‘when used as a noun, mean a dweller, habitant or occupant; one who resides or dwells in a place for a period of more or less duration; it signifies one having a residence, or one who resides or abides.”

The word resident has also been defined in a Pakistani case law 2001 CLC 1305 as dweller, habitant or occupant; one who resides or dwells in a place for a period of more or less duration; it signifies one having residence, or one who resides or abides.

However, the above-stated definitions do not provide for what period of time, either weeks or years, a person is required to dwell in a place to become a resident of that place. Therefore, the provisions of the Income Tax Ordinance may be referred here which states that a person shall be a resident person for a tax year i.e., 1 July of the previous calendar year and concluding on 30 June, if the person is a resident individual, resident company or resident association of persons for the year.

According to the section 82 of the Income Tax Ordinance 2001, an individual is termed as a “Resident of Pakistan” if that individual is present in Pakistan for a period of, or periods in aggregate to, one hundred and eighty-three (183) days or more in the tax year or is an employee or official of the Federal Government or a Provincial Government posted abroad in the tax year.

Singaporean patent law, under section 34 (4) (c), defines the term resident as a person who, at the material time, is residing in Singapore by virtue of a valid pass lawfully issued to him under the Immigration Act to enter and remain in Singapore for any purpose. While the section 23 of the United Kingdom Patent Act states that a person normally resident abroad but temporarily resident in the United Kingdom or a person who is not a United Kingdom citizen but has a residential address here is considered to be the resident of United Kingdom; and if a person normally resident in the United Kingdom lives abroad for a period of several months, he will be regarded as having ceased to be a United Kingdom resident during this period.

The intent of the legislature to incorporate the word “resident” in the provision was to widen its ambit excluding the possible restrictions that can be imposed on the applicability of the provision due to difference of nationalities of the persons making patent applications since the term “resident” has wider connotation as compared to that of the term “citizen”.

 

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