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SOUTH AFRICA


SOUTH AFRICA


of an amendment, a counterclaim alleging invalidity of the patent was introduced. The plaintiff submitted that the admitted sale of valves with the intention that such valves would be used in the patented method constituted contributory infringement. The court, however, disagreed and stated that the primary act of infringement as alleged in the particulars of claim, namely the use of the defendant's valves, had to be proved. Without a primary act of infringement, there can be no contributory infringement.


Regarding the counterclaim for invalidity, the court reviewed the authorities and stated that “on the assumption that the principle of ‘enabling disclosure’ is part of our law, it is apparent that unless the method of putting an earlier [prior art] document into operation is so self-evident, it will not be treated as an anticipation”. Based on this, it was found that the prior publications, which were relied on by the defendant, failed to prove invalidity of the patent claims. The court arrived at an order that both the plaintiff ’s claim of infringement and the defendant’s counterclaim for revocation were dismissed.


In a counterclaim for invalidity in the case of 3M Future Africa (Pty) Ltd v Standard Bank of South Africa Ltd, MTN Group Ltd and MTN Mobile Money SA (Pty) Ltd, certain claims (claims 17–19) of


the


patent in suit were held to be valid and infringed but certain claims were held to be invalid, and the patent was accordingly provisionally revoked. The provisional revocation would become final unless the patentee filed an application to amend the patent within one month of the order. The counterclaim for revocation was based on lack of novelty, lack of inventive step, that the invention consists of a scheme, rule or method for doing business and that it included an invention which consists of a program for a computer. On the basis that there was no opposition to the counterclaim as directed at claims 1–16 and 20–25, the court found these claims to be invalid, resulting in partial invalidity of the patent. No order as to damages with respect to the identified infringement was made.


The case of Videx Wire Products (Pty) Ltd v Camworth Technologies Ltd, related to a declaration of non-infringement of the respondent’s patent. Videx instituted proceedings against Camworth Technologies in terms of Section 69(1) of the Patents Act. The patent in suit relates to a device referred to as a pre-stress unit or a pot. Videx intended to manufacture and sell a pre-stress unit (the Videx unit) in South Africa. The dispute under question was whether the Videx unit, if manufactured and sold by Videx, would infringe Camworth


102 World Intellectual Property Review e-Digest 2013


Technologies’ patent. Prior to this action, Videx complied with the requirements of Section 69(1)(a) but Camworth Technologies refused to give the required acknowledgment. It was held that the Videx unit did not infringe claim 1 of the patent as the socket of the Videx unit was not convexly curved. This judgment is under appeal.


In the matter of University of Pretoria v The Registrar of Patents, Bone SA and Nicolaas Duneas, the Commissioner of Patents was tasked to adjudicate in an appeal against a decision of the Registrar of Patents, pertaining to entries in the patent register made in relation to two South African patents.


The case dealt with Section 40 of the Act, relating to the acceptance of a patent application by the registrar prior to publication. It was held that the applications had in fact lapsed because their acceptance had not been properly delayed.


In the case of African Explosives Limited v Sasol Dyno Nobel (Pty) Ltd, the applicant applied, in terms of Section 51(10) of the Patents Act, to set aside two amendments to the claims of the respondent’s patent. In respect of the first amendment, the applicant contested that the substitution of the words “surface connection” with “surface connector block” served to broaden the scope of


the first claim,


thereby contravening the provisions of Section 51(7). The court held that on a plain, grammatical reading, the word “connection” could not be interpreted to mean a state of connection and held that the amendment was allowable. A second amendment was also allowed and the application was dismissed with costs.


Ursula Brunetti is a director and patent attorney at DM Kisch Inc. She can be contacted at: ursulab@dmkisch.com


Ursula Brunetti joined DM Kisch in 2005 and had obtained her BSc (cum laude) in chemistry and biochemistry and a BSc with Honours (cum laude), in chemistry, from the Rand Afrikaans University by 2004. She also obtained a LLB degree (cum laude) from the University of South Africa in 2008. She was admitted as an attorney of the High Court of South Africa in 2009 and is a registered patent attorney and a Fellow of the South African Institute of IP Law.


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