Deton Engineering (Pty) Ltd and another v McKelvey and others
 4 All SA 394 (T)
Transvaal Provincial Division
10 June 1997
Van Dijkhorst J
M Snyman and D Cloete
. Editor's Summary . Cases Referred to . Judgment .
Patent Patents Act 57 of 1978 Commissioner of patents has jurisdiction in terms of section 51(3)( b) to deal with an
application for amendment of a patent Commissioner of patents to be considered a "court" in terms of the provisions of
the Patent Act.
Interpretation of statutes Section 51(9) of the Patents Act 57 of 1978 "any court" to be read in a wider sense to
include the commissioner of patents.
The proceedings were brought before the court sitting as a commissioner of patents. The Applicants launched an
application against the Respondents in which they sought an interdict under the patent. While the interdict was
pending the applicants launched the present application, purportedly in terms of section 51(9) of the Patents Act 57
of 1978 (the Act). The application for the interdict was heard and dismissed by the commissioner of patents on 18
October 1995. The Respondents maintained that the application for amendment under section 51(9) of the Act was
procedurally defective in that the Commissioner had no jurisdiction to entertain such application in terms of this
subsection. It was further submitted by the Respondent that this section applied only where proceedings were
pending before a "court" as defined in section 2 of the Act. The Court examined the provisions of the Act dealing
with the jurisdiction of the commissioner of patents and the distinction between the commissioner and the "court".
Held In terms of section 76(1) and (2) of the Act, which deals with appeals from the commissioner, it is clear that
"court" is used in its defined (narrow) sense. The commissioner sits as a court and is in fact a court. In the context
of section 51(9)
Page 395 of  4 All SA 394 (T)
the words " any Court" should be read in a wider sense than the definition in section 2 of the Act, so as to include
"court of the commissioner of patents".
It is sound principle as set out in section 51(9) that the tribunal hearing the patent amendment matter should
also deal with the application for amendment. This applies equally to hearings before the commissioner of patents.
The Respondent's argument in limine regarding the jurisdiction of the commissioner failed.
For the Copyright Act 98 of 1978, see Butterworths Statutes of South Africa 1996 (Vol 1)
For Patents generally, see LAWSA (Vol 20, paragraphs 167)
For the Patents Act 57 of 1978, see Butterworths Statutes of South Africa 1996 (Vol 1)
Cases referred to judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed.)
Barmac Associates Ltd v SA Dynamics 1991 BP 16 (CP)
Dantex Explosives (Pty) Ltd v Sasol Chemical Industries (Pty) Ltd 1992 BP 265 (CP)
General Electric Co v De Beers Industrial Diamond Division (Pty) Ltd 1986 BP 359 (CP)
Johnson & Johnson Baby Products Co and another v Kimberley Clark of SA (Pty) Ltd 1987 BP 52 (CP)
Martin Johnson (Pty) Ltd v Crouch Footware CC and others 1991 BP 60 (CP)
Roman Roller CC and another v Speedmark Holdings (Pty) Ltd 1996 (1) SA 405 (A)
Water Renovation (Pty) Ltd v Goldfields of SA Ltd 1991 BP 26 (CP)
Water Renovation (Pty) Ltd v Goldfields of SA Ltd 1994 (2) SA 588 (A)
VAN DIJKHORST J
These proceedings brought before me, sitting as commissioner of patents, concern South African patent number
89/4136. The proprietor of the patent is an Australian company. The second applicant is a registered licensee under