CHAPTER X
REVOCATING OF PATENTS
61.
Grounds for application for revocation of patent.
(1)
62.
Any person may at any time apply in the prescribed manner for the
revocation of a patent on any of the following grounds only, namely—
(a)
that the patentee is not a person entitled under section 27 to
apply for the patent;
(b)
that the grant of the patent is in fraud of the rights of the
applicant or of any person under or through whom he claims;
(c)
that the invention concerned is not patentable under section
25;
(d)
that the invention as illustrated or exemplified in the complete
specification concerned cannot be performed or does not lead
to results and advantages set out in the complete specification;
(e)
that the complete specification concerned does not sufficiently
describe, ascertain and, where necessary, illustrate or
exemplify the invention and the manner in which it is to be
performed in order to enable the invention to be carried out by
a person skilled in the art of such invention;
[Para. (e) substituted by s. 12 of Act No. 58 of 2002.]
(f)
that the claims of the complete specification concerned are
not—
(i)
clear; or
(ii)
fairly based on the matter disclosed in the specification;
(g)
that the prescribed declaration lodged in respect of the
application for the patent contains a false statement or
representation which is material and which the patentee knew
to be false at the time when the declaration was made;
(h)
that the application for the patent should have been refused in
terms of section 36;
(i)
that the complete specification claims as an invention a
microbiological process or a product thereof and that the
provisions of section 32 (6) have not been complied with.
(2)
An application for revocation shall be served on the patentee and
lodged with the registrar in the prescribed manner and shall thereafter
be dealt with in the manner prescribed.
(3)
The commissioner shall decide whether the patent shall be revoked or
whether and, if so, subject to what amendments, if any, of the
specification or claims thereof, the patent shall be upheld: Provided
that the commissioner shall not allow any amendment which is in
conflict with the provisions of section 51 (6) or (7): Provided further
that the commissioner may in the exercise of his discretion as to costs
take into consideration the conduct of the patentee in framing his
specification and claims and permitting them to remain as so framed.
Patents comprising more than one invention.