s 78 Declaration as to non-infringement
78.—(1) Without prejudice to the jurisdiction of the court to make a declaration apart from this section, a declaration that an act does not, or a proposed act would not, constitute an infringement of a patent may be made by the court in proceedings between the person doing or proposing to do the act and the proprietor of the patent, even though no assertion to the contrary has been made by the proprietor, if it is shown —(a) that that person has applied in writing to the proprietor for a written acknowledgment to the effect of the declaration claimed, and has furnished the proprietor with full particulars in writing of the act in question; and (b) that the proprietor has refused or failed to give any such acknowledgment.[Act 23 of 2019 wef 01/04/2022] (2) [Deleted by Act 23 of 2019 wef 01/04/2022]