(1)
A declaration that the use by any person of any process, or the
making or use or offer to dispose or disposal or importation of any
article by any person, does not or would not constitute an infringement
of a patent, may be made by the commissioner in proceedings
between that person and the patentee, notwithstanding that no
assertion to the contrary has been made by the patentee, if it is
proved—
(a)
that such person has applied in writing to the patentee for a
written acknowledgement to the effect of the declaration
claimed, and has furnished the patentee with full particulars of
the process or article in question; and
(b)
that the patentee has failed to give such an acknowledgement.
[Sub-s. (1) substituted by s. 15 of Act No. 58 of 2002.]
(2)
69A.
The costs of all parties to proceedings for a declaration instituted by
virtue of this section shall be awarded in such manner as the
commissioner may deem fit.
Acts of non-infringement.
(1)
It shall not be an act of infringement of a patent to make, use,
exercise, offer to dispose of, dispose of or import the patented
invention on a non-commercial scale and solely for the purposes
reasonably related to the obtaining, development and submission of
information required under any law that regulates the manufacture,
production, distribution, use or sale of any product.
(2)
It shall not be permitted to possess the patented invention made,
used, imported or acquired in terms of subsection (1) for any purpose
other than for the obtaining, development or submission of information
as contemplated in that subsection.
[S. 69A inserted by s. 16 of Act No. 58 of 2002.]
70.
Remedy for groundless threats of infringement proceedings.
(1)
Where any person, by circular, advertisement or otherwise, threatens
any other person with proceedings for infringement of a patent, a
person aggrieved thereby may, whether the person making the threats
is or is not entitled to or interested in a patent, or an application for a
patent, institute proceedings against him and obtain a declaration to
the effect that such threats are unjustifiable and an interdict against
the continuance of such threats, and may recover such damages, if
any, as he has sustained thereby, unless the person making the
threats proves that the acts in respect of which the proceedings are
threatened, constitute or, if done, would constitute an infringement of a
patent in respect of a claim in the specification which is not shown by
the plaintiff to be invalid: Provided that a circular, advertisement or
communication addressed to any person, which comprises only a
notification of the existence of a particular patent upon which the
proprietor relies for protecting his interests shall not, by itself, be
deemed to be a threat of proceedings for infringement.
(2)
The defendant in any such proceedings may apply by way of a
counterclaim in the proceedings for any relief to which he would be