8
9
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thereon for such time as may be required to enable the patentee to effect any amendment of the specification
pursuant to the conditions imposed by the commissioner, who may attach such other condition to any order to
be issued on the counterclaim as he may deem fit; and
(b) when the specification has been amended in terms of paragraph (a), the commissioner may, subject to such
order as to costs as he may issue and as to the date from which damages shall be calculated, grant relief in
respect of any claim which had, before the amendment, been found to be valid and infringed, and in
exercising his discretion he may take into consideration the conduct of the patentee in inserting in the
specification those claims which had been found, before amendment, to be invalid or permitting such claims to
remain there."
S 51:
"(6) No amendment of a complete specification which becomes open to public inspection after the publication of
the acceptance of the specification in terms of section 42, whether before or after it so becomes open to
public inspection, shall be allowed if
(a) the effect of the amendment would be to introduce new matter or matter not in substance disclosed in
the specification before amendment; or
(b) the specification as amended would include any claim not fairly based on matter disclosed in the
specification before amendment.
(7) No amendment of a complete specification which has become open to public inspection after the publication of
the acceptance of the specification in terms of section 42 shall be allowed if the specification as amended
would include any claim not wholly within the scope of a claim included in the specification before
amendment."
The phrase "to dislodge the soil" was omitted by mistake from the draft contained in the notice of motion. Since it had
always been part of the claim and the patentee did not give notice of any intention to delete the phrase, the omission is
immaterial.
Boards of Appeal of the European Patent Office Case T 0190/993.2.4. The statement that a patent "must be read by a
mind willing to understand, not by a mind desirous of misunderstanding" comes from Lister v Norton Brothers and Co
(1886) 3 RPC 199 (ChD).