There is something to be said for this argument, but in my view it is outweighed by the following considerations.
It was a longstanding practice, as evidenced by the sections quoted from the old Act, that amendments were dealt
with during pending proceedings by the commissioner of patents without any preliminary formalities. There was a
discretion to order advertisement. There was no reason after nearly three decades to terminate this practice and
substitute a circuitous and formalistic one which would not benefit anybody but might lead to amendments being
granted without actual notice to the opposing party.
It was argued that the point in limine is not just technical. There rests an onus on the respondents as part of the
socalled split onus, to convince the commissioner of patents of the soundness of their objection on the substantial
issues on amendment (see in this regard Water Renovation (Pty) Ltd v Goldfields of SA Ltd 1994 (2) SA 588 (A) 594B
E). Therefore, so it is argued, the respondents have a right to file founding and replying affidavits which is a
substantial advantage. The answer to this argument is this: The socalled advantage is more illusory than real and
in any event, should in a particular case the scales not be held evenly, nothing precludes an application to file
further affidavits. This argument is in my view of no moment.
It follows from the above that in my view the context of section 51(9) dictates that the words "any court"
therein, should be read in a wider sense than the definition in section 2 of the Act, namely to include "court of the
commissioner of patents". For this reason the point in limine must fail.
It must in my view also fail for a further reason. Even if my interpretation that the words "any court" are to be
restricted to a division of what was the Supreme Court, is wrong, there has been substantial compliance. The
registrar of patents was given notice of this application for amendment. That he received it because he happens to
be registrar of the commissioner of patents does not change the situation. He received notice of opposition, in fact
he received one for each proposed amendment. There was proper advertisement in respect of each amendment.
The notice of amendment and accompanying papers set out what purported to be full reasons and contained all
particulars which form P13 required. Even in the absence of form P13 the registrar had to deal with this as an
opposed matter which lay outside his jurisdiction and had to be decided by the commissioner of patents.
The commissioner of patents therefore has jurisdiction in terms of section 51(3)(b) to deal with this application
for amendment. The fact that it was purportedly brought in terms of section 51(9) does not oust his jurisdiction.
The point in limine is dismissed; the costs thereof are reserved.
Page 401 of [1997] 4 All SA 394 (T)
For the applicants:
DN Beasley SC and JR Peter instructed by DM Kisch Incorporated, Pretoria
For the respondents:
ABS Franklin SC instructed by Hahn & Hahn, Pretoria