Pharma Dynamics (Pty) Ltd v Bayer Pharma AG (formerly Bayer Schering Pharma AG) and another
 4 All SA 302 (SCA)
SUPREME COURT OF APPEAL
19 September 2014
FDJ BRAND, A CACHALIA, BH MBHA, MJD WALLIS JJA and R
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property law Patents Infringement of patent Validity of patent Patents Act 57 of 1978 Whether
invention for which protection claimed in the patent involves an inventive step required by section 25(1) of the Act
Whether patent qualifies as a true "divisional patent" in terms of section 37 of the Patents Act Challenge to patent not
succeeding, with court confirming that patent had been infringed.
The first respondent was the patentee of an invention used as a contraceptive ("the 2004 patent"). The second
respondent was licenced to use the invention in South Africa. They were jointly referred to by the court as "Bayer".
The appellant ("Pharma") was a local distributor of generic pharmaceuticals. In March 2011, Pharma obtained
approval from the Medical Control Council to import and sell an oral contraceptive called Ruby. That product was the
generic equivalent of the Yasmin product sold by Bayer under the 2004 patent. Alleging that the sale of Ruby
constituted an infringement of the 2004 patent, Bayer approached the court a quo for an interdict and ancillary
relief. Pharma denied that Ruby infringed the patent, or that the 2004 patent was valid, and counterclaimed for its
revocation. The court a quo held, however, that the 2004 patent was valid and that Ruby infringed it. That led to the
Pharma argued that the 2004 patent did not include within its scope the allegedly infringing Ruby product. In
attacking the validity of the patent, Pharma relied firstly on the ground that the invention claimed in the specification
of the patent lacked an inventive step. Secondly, Pharma contended that, in any event, the 2004 patent was invalid
on the ground that it was not a true divisional of its 2002 parent patent. In consequence, so Pharma's contention
went, the 2002 patent lacked novelty in the light of the disclosures in the 2002 patent.
Held It was necessary for the Court to begin with the broad principles of patent interpretation as established by
authority. The rule of interpretation is to ascertain, not what the inventor or patentee may have had in mind, but
what the language used in the specification means, ie, what the intention was as conveyed by the specification,
properly construed. The words used must be viewed in the context of the patent as a whole.
A patent specification is a statement by the patentee, addressed to those skilled in the art, in which he informs
them of what he claims to be the essential features of the invention for which a monopoly is claimed. Consequently,
a patent specification must be construed with reference to the state of knowledge of those skilled in the art at the
time of the priority date of the patent in issue. Accordingly, in order to enable the court to construe the specification
properly, it must be instructed by expert witnesses as to the state of the art in the field of
Page 303 of  4 All SA 302 (SCA)
the invention in order to place the court as near as may be possible to the position of those skilled members of the
public to whom it is addressed.
The determination of the question as to whether or not plaintiff has proved an infringement of his patent turns
upon a comparison between the article involved in the alleged infringement and the words of the claims in the
patent. Applying the relevant principles, the Court concluded that Pharma's Ruby product did infringe the 2004
Turning to Pharma's attack against the patent on the basis that it lacked an inventive step, the Court referred to
section 25(10) of the Patents Act 57 of 1978 which requires that, in order to be patentable, an invention must
involve an inventive step in the sense that it is not obvious to a person skilled in the art, having regard to any
matter which forms, immediately before the priority date of the invention, part of the state of the art. After
considering the expert opinions, the Court agreed with the court a quo's conclusion that Pharma had failed to
establish its attack on the patent in suit based on obviousness. Pharma's attack of the patent on the basis of
novelty similarly failed.
The appeal was thus dismissed with costs.
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