PATENTS ACT (as amended) (3) In any action under this section where an exclusive licensee is the plaintiff, the patentee shall, unless he is joined as plaintiff in such action, be added as defendant: Provided that a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings. (4) If the patentee is the plaintiff in any action under this section, he shall give notice thereof to the exclusive licensee under the patent in question and any such licensee shall be entitled to intervene as a co-plaintiff and to recover any damages he may have suffered as a result of the infringement. (5) No action under this section shall lie in respect of an infringement which took place before the publication referred to in subsection (2) of section sixteen. (6) No action for infringement of a patent may be instituted more than three years after the date on which that patent has expired or lapsed. (7) In an action for infringement of a patent the plaintiff shall be entitled to relief by way of interdict and damages and the Court may, on application, make such order for an interdict, damages, inspection or account and impose such terms and give such directions as it may deem fit: Provided that in awarding damages the Court shall take into account any dilatory conduct on the part of the patentee or plaintiff in making the infringer aware of the patent. (8) In an action for infringement of a patent in respect of an invention which relates to the protection of a new substance, any substance of the same chemical composition and constitution shall, in the absence of proof to the contrary, be deemed to have been produced by the patented process. (9)37 If it is proved, in an action for infringement of a patent in respect of an invention which relates to the protection of an art or a process, that— (a) the defendant produced a product that is identical to that produced from the patented art or process; and (b) the patented art or process is new; it shall be presumed, in the absence of proof to the contrary, that the defendant’s article was produced from the patented art or process: Provided that, in adducing proof to the contrary, the legitimate interests of the defendant in protecting his manufacturing and business secrets shall be taken into account. 48A Anton Piller orders38 (1) If a person who has instituted or intends instituting an action for infringement of a patent satisfies the Court that, prima facie— (a) he has a cause of action against another person which he intends to pursue; and (b) the other person has in his possession documents or other things of whatsoever nature which constitute evidence of great importance in substantiation of that cause of action; and (c) there is a real and well-founded apprehension that the documents or other things may be hidden, destroyed or rendered inaccessible before discovery can be made in the usual way; the Court may make such order, commonly known as Anton Piller order, as it considers necessary or appropriate to secure the preservation of the documents or things as evidence. (2) An order in terms of subsection (1) may be granted without notice to the person who is allegedly in possession ss 1–2 of the documents or other things to which the order relates, and the Court may sit in camera for the purpose of hearing an application for such an order: Provided that the Court shall not grant an order without such notice unless it is satisfied that there is a real possibility that the documents or things will be hidden, destroyed or rendered inaccessible if notice is given. (3) An order in terms of subsection (1) may be granted on such conditions, including the giving of security by the applicant, as the Court may fix. (4) This section shall not be taken to limit any power the Court may have under its ordinary jurisdiction to grant orders such as are referred to in this section. 49 Relief for infringement of partially valid specification (1) Where, in any action for the infringement of a patent, the Court finds that any claim in the specification in respect of which the infringement is alleged is valid, but that any other claim thereunder is invalid, then, notwithstanding the provisions of section forty-eight, the following provisions shall apply— (a) unless the Court is satisfied that the invalid claim was not framed in good faith and with reasonable skill and knowledge, the Court shall, subject to its discretion as to costs and as to the date from which damages should be reckoned and to such terms as to amendment of the specification as it may deem desirable, grant relief in respect of any valid claim which is or has been infringed, without regard to the validity of any other claim in the specification, and in exercising such discretion the Court may take into consideration the conduct of the patentee in inserting the invalid claim in the specification or permitting that claim to remain there; (b) if the Court is satisfied that the invalid claim was not framed in good faith and with reasonable skill and knowledge, the Court shall not grant any relief by way of damages or costs, but may grant such other relief in respect of any valid claim which is or has been infringed as to it seems just and may impose such terms as to amendment of the specification as a condition of granting any such relief as it may deem desirable; (c) if a counter-claim for revocation of the patent has been made in the action on the ground of invalidity of any claim in the specification, the Court may postpone the operation of any order made thereon for such time as may be requisite to enable the patentee to effect any amendment of the specification pursuant to terms imposed by the Court and may attach such other conditions to any order to be made on the counter-claim as the Court may deem desirable. 50 Restrictions on recovery of damages for infringement (1) Where— (a) there has been a change of ownership of a patent, whether by virtue of assignment, transmission or operation of law; or (b) an exclusive licence has been granted in respect of a patent; no damages for the infringement of the patent shall be recoverable by the new owner or the exclusive licensee, as the case may be, in respect of any infringement of that patent during the period from the date of the change of ownership or grant of exclusive licence, as the case may be, until the registration in terms of section fifty-three of that