(4)
In any proceedings for infringement the defendant may counterclaim
for the revocation of the patent and, by way of defence, rely upon any
ground on which a patent may be revoked.
(5)
The plaintiff in any such proceedings shall, before he institutes the
proceedings, give notice thereof to every licensee under the patent in
question whose name is recorded in the register, and any such
licensee shall be entitled to intervene as a co-plaintiff.
[Sub-s. (5) substituted by s. 3 (b) of Act No. 76 of 1988.]
(6)
In lieu of damages the plaintiff may, at his or her option, be awarded
an amount calculated on the basis of a reasonable royalty which
would have been payable by a licensee or sub-licensee in respect of
the patent concerned.
[Sub-s. (6) added by s. 3 (c) of Act No. 76 of 1988 and substituted by s. 46 of
Act No. 38 of 1997.]
66.
Restriction on recovery of damages for infringement.
(1)
A patentee shall not be entitled to recover damages in respect of
infringement of a patent from a defendant who proves that at the date
of the infringement he was not aware, and had no reasonable means
of making himself aware, of the existence of the patent, and the
marking of an article with the word “patent” or “patented” or any word
or words expressing or implying that a patent has been obtained for
the article, stamped, engraved, impressed on or otherwise applied to
the article, shall not be deemed to constitute notice of the existence of
the patent unless such word or words are accompanied by the number
of the patent: Provided that nothing in this section shall affect any
proceedings for an interdict.
(2)
Any person who represents that any invention is patented, without
such representation disclosing the number of the patent concerned,
and from whom the number of such patent has been requested in
writing by registered post by any other person unaware of such
number, may not recover from such other person damages, or obtain
an interdict against him, in respect of any infringement of such patent
by such other person, committed during the period commencing with
the representation and terminating two months after the date on which
such other person was notified in writing by the first-mentioned person
of the number of the patent concerned.
(3)
Any person who, having made a request referred to in subsection (2),
expends during the period referred to in that subsection any money,
time or labour with a view to making, using, exercising, offering to
dispose of, disposing of or importing the invention, may apply in the
manner prescribed to the commissioner for compensation in respect
of the money, time or labour reasonably so expended, and the
commissioner may issue such order as he or she may deem fit.
[Sub-s. (3) substituted by s. 14 of Act No. 58 of 2002.]
(4)
If proceedings are instituted in respect of infringement of a patent,
committed after the failure to pay any prescribed renewal fee within
the prescribed period, and before any extension of the period for such