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ARTICLE-34: Process Patents: Burden of Proof [go to this ARTICLE]
... 1. For the
purposes of civil proceedings in respect of the infringement of the
rights of the owner referred to in paragraph 1(b) of Article 28,
if the subject matter of a patent is a process for obtaining a
product, the judicial authorities shall have the authority to order
the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that
any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to
have been obtained by the patented process: ...
... 2. Any
Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only
if the condition referred to in subparagraph (b) is fulfilled. ...
... 3. In the
adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets
shall be taken into account.
...