SOUTH AFRICA
REVIEW OF PATENT CASES IN 2012
Ursula Brunetti DM Kisch
S
The following is a summary of pertinent cases which have shaped the patent litigation landscape in South Africa in 2012. These cases not only serve to highlight well-engrained patent law principles, but also to steer South Africa’s patent practice into the future. It is noteworthy that South African courts continue to uphold the rights of patent holders. In this review, we represented the successful party in three cases.
Over the last year, we witnessed the emergence of constitutional considerations pursuant patent to litigation. In Cipla Medpro (Pty) Ltd v Aventis Pharma SA, the Supreme Court of Appeal (SCA) was confronted with a public interest defence, together with the more common defences usually raised in such matters, against the granting of an interim interdict in favour of Aventis to prevent Cipla from infringing its patent. This matter represents the first instance where constitutional considerations were raised in patent litigation.
The judgment pertains to two appeals heard concurrently by the SCA, the first being an appeal by Cipla against an amendment of the patent that was made by Aventis, and the second being an appeal by Aventis against the order of the Court of the Commissioner of Patents dismissing its application for an interim interdict against Cipla. Cipla’s application for setting aside the amendment of the patent was based first on claim language interpretation, and second on various grounds of invalidity.
Suffice to say that the commissioner found that the first claim was unclear, and thus invalid, and accordingly refused to grant the interdict. The SCA overturned this decision, found that the other grounds for alleged invalidity raised by Cipla were unsubstantiated, and consequently held that Aventis had prima facie established an entitlement to enforce its patent. Although the Treatment Action Campaign successfully applied to be admitted as amicus curiae in the SCA matter to assist the court with certain constitutional
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considerations, it was unsuccessful in convincing the court that the perceived public interest outweighed the patentee’s rights to enforce its patent.
Cipla withdrew its product from the market following the SCA judgment, but only for a short period until an application for leave to appeal to the Constitutional Court was filed. Aventis therefore approached the High Court on an urgent basis for a declaratory order that the application for leave to appeal to the Constitutional Court did not suspend the SCA judgement, and that Cipla was not entitled to re-launch its product during this time. The High Court dismissed Aventis’ application, but shortly after the High Court judgment, the Constitutional Court refused Cipla’s application for leave to appeal, and the SCA judgment in favour of Aventis was thus confirmed.
The importance of correct and timely execution of procedural steps in patent litigation came to the fore in the case between BASF AGRO BV Arnhem (NL)–Wadenswil Branch v Villa Crop Protection (Pty) Ltd and Laeveld Agrochem (Pty) Ltd. The defendant failed to carry out certain procedural steps in a timely manner, with the result that the matter of alleged infringement of the plaintiff ’s patent was not ripe for hearing before the court. Accordingly, the court was not able to deal with the merits of the case. While the main matter is still due to come to trial, this judgment, which is interlocutory to the main matter, relates to the issue of costs occasioned by the postponement of the hearing of the main matter.
In arriving at his decision regarding the issue of costs, Kruger AJ commented on both the plaintiff ’s and the defendant’s conduct. In particular, it was held that flowing from the issues which transpired during the pre-trial conference, it must have been evident to the plaintiff that there was a high likelihood that the main matter was not ready to proceed to trial. Notwithstanding this fact, the plaintiff chose to continue as if the trial would proceed. Turning to the defendant’s
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