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A WTO Member's law presumes, in the absence of proof to the contrary, that an identical product made…

Article 34.1 requires the reversed burden in "at least one" of two circumstances: where the product is new, or where there is a substantial likelihood of use and the…

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A WTO Member's law presumes, in the absence of proof to the contrary, that an identical product made without the patentee's consent was obtained by a patented process only where the product obtained by that process is new. Anand Chemicals' process yields a known product; there is a substantial likelihood that a rival used the process, but Anand cannot discover the rival's actual process despite reasonable efforts. Under Article 34 of the TRIPS Agreement:

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Article 34.1 requires the reversed burden in "at least one" of two circumstances: where the product is new, or where there is a substantial likelihood of use and the patentee cannot discover the process actually used. Article 34.2 leaves each Member "free to provide" the burden only when the first condition is met, so this law is consistent and the burden does not shift for Anand's known product. Article 34.3 adds that the defendant's manufacturing and business secrets must be taken into account when proof to the contrary is offered.

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