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
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