South Africa’s patent litigation landscape well tended in 2012

The following is a summary collection of pertinent cases that 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 serve 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 in patent litigation. In Cipla Medpro v Aventis Pharma, 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 firstly on claim language interpretation, and secondly on various grounds of invalidity. Regarding Aventis’ application for an interdict, the Commissioner of Patents found that the first claim of the patent was unclear and thus invalid, and accordingly refused to grant the interdict.