Section 109. Right of exclusive licensee to take proceedings against infringement

109. Right of exclusive licensee to take proceedings against infringement.— (1) The holder of an exclusive licence shall have the like right as the patentee to institute a suit in respect of any infringement of the patent committed after the date of the licence, and in awarding damages or an account of profits or granting any other relief in any such suit the court shall take into consideration any loss suffered or likely to be suffered by the exclusive licensee as such or, as the case may be, the profits earned by means of the infringement so far as it constitutes an infringement of the rights of the exclusive licensee as such. 1. Subs. by Act 56 of 1974, s. 3 and the Second Schedule, for "existing" (w.e.f. 20-12-1974). 2. Ins. by Act 38 of 2002, s. 44 (w.e.f. 20-5-2003). 3. Subs. by Act 15 of 2005, s. 58, for "using or selling" (w.e.f. 1-1-2005). 4. Subs. by s. 58, ibid ., for "use or sale," (w.e.f. 1-1-2005). 5. Subs. by s. 58, ibid ., for "who is duly authorised by the patentee to sell or distribute the product" (w.e.f. 1-1-2005). 6. Section 108 renumbered as sub-section (1) thereof by Act 38 of 2002, s. 45 (w.e.f. 20-5-2003). 7. Ins. by s. 45, ibid . (w.e.f. 20-5-2003). (2) In any suit for infringement of a patent by the holder of an exclusive licence under sub-section (1), the patentee shall, unless he has joined as a plaintiff in the suit, be added as a defendant, but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.