inadequate. On this basis it set them aside under a jurisdiction founded upon section 51(10). It is necessary to
quote section 50(1)(b) and 51 (as a whole).
Section 50(1)(b) is in the following terms:
"50.
Correction of clerical errors and amendment of documents.
(1)
The registrar or commissioner may authorize
(a)
...
(b)
the amendment otherwise of any document for the amending of which no express provision is made in
this Act."
What is contemplated is corrections to documents other than patent specifications. Specifications are dealt with in
section 51.
Section 51 reads:
"51.
Amendment of specification.
(1)
An applicant for a patent or a patentee may at any time apply in the prescribed manner to the registrar for the
amendment of either the relevant provisional specification or the
Page 82 of [1998] 3 All SA 77 (A)
relevant complete specification, and shall in making such application, set out the nature of the proposed
amendment and furnish his full reasons therefor.
(2)
An application for the amendment of a specification that is open to public inspection shall, except in the case of
an application so open in terms of section 43(3), be advertised in the prescribed manner.
(3)
(a)
Any person may oppose such application for amendment within the prescribed time and in the prescribed
manner.
(b)
Such opposition to such application for amendment shall be dealt with by the commissioner in the
prescribed manner, and the commissioner shall determine whether and on what conditions, if any, the
amendment ought to be allowed.
(4)
Where the acceptance of a specification concerned has not been published in terms of section 42 or there is no
opposition in terms of subsection (3)(a) of this section, the registrar may determine whether and on which
conditions, if any, the amendment ought to be allowed.
(5)
An amendment of a provisional specification shall be allowed if it is by way of correction, including correction of
an obvious mistake, and no amendment of a provisional specification shall be allowed if it would introduce new
matter or matter not in substance disclosed in the specification sought to be amended.
(6)
No amendment of a complete specification which becomes open to public inspection after the publication of the
acceptance of the specification in terms of section 42, whether before or after it so becomes open to public
inspection, shall be allowed if
(a)
the effect of the amendment would be to introduce new matter or matter not in substance disclosed in
the specification before amendment; or
View Parallel Citation
(b)
the specification as amended would include any claim not fairly based on matter disclosed in the
specification before amendment.
(7)
No amendment of a complete specification which has become open to public inspection after the publication of
the acceptance of the specification in terms of section 42 shall be allowed if the specification as amended
would include any claim not wholly within the scope of a claim included in the specification before amendment.
(8)
Where an amendment may not be allowed by reason of the prohibition imposed by subsection (6)(a), but it
describes matter which may fairly be associated with the matter described in the specification as framed and
the acceptance of the specification concerned has not been published in terms of section 42, the new matter
may be introduced by way of a supplementary disclosure attached to the specification and dated with the date
on which the application for amendment is made: Provided that in determining the validity of the patent under
this Act, regard shall be had to the date of the supplementary disclosure.
(9)
Where any proceedings relating to an application for a patent or a patent are pending in any court, an
application for the amendment of the relevant specification shall be made to that court, which may deal with
such application for amendment as it thinks fit but subject to the provisions of
Page 83 of [1998] 3 All SA 77 (A)
subsections (5), (6) and (7), or may stay such pending proceedings and remit such application for amendment
to the registrar to be dealt with in accordance with subsections (2), (3) and (4).
(10)
Any amendment of a specification made in conflict with the provisions of this section, other than an amendment
allowed by the commissioner or a court, may be set aside by the commissioner at any time on application
made to him."
[I have quoted the Act as it currently reads. It was amended both in 1983, by Act 67 of 1983 and in 1986, by Act 44
of 1986. The amendments so made, do not affect the question in issue in this appeal.]