as set out above, the applicant promptly started the amendment proceedings.
[101] I, therefore, find that there is no basis for the suggestion that the applicant has unreasonably delayed in
bringing the amendment application. I can equally not find any grounds justifying the first respondent's
charge that the applicant's institution of the action proceedings was in any way mala fide. The applicant
embarked on the amendment application as a consequence of what the first respondent raised in its plea and
counterclaim.
[102] The above cannot point to any mala fides. Consequently, this ground of objection to the application to amend
cannot have merit. The grounds of opposition to the grant of the patent can thus not hold any water.
Page 373 of [2014] 1 All SA 355 (GNP)
Conclusion
[103] It is thus my considered view and finding that the opposition to the applicant's application for the amendment
of its patent falls flat and the applicant on the other side deserves to have its prayers acceded to.
[104] In addition to those prayers that became unopposed, the applicant has also made out a case for the grant of
those prayers that were in dispute.
Costs
[105] The complexity of the issues raised and decided in this application coupled with the amount of research and
technical work required to be done herein justifies the costs of two Counsel.
Order
[106] The following order is made:
"IT IS HEREBY ORDERED THAT:
1.
The claims of patent 2000/5613 be and are hereby amended in the manner set out in the markedup copy of
the claims (Annexure JF4) in the affidavit of Jennifer Farrar made in support of this application and lodged in
and/or with the papers herein;
2.
the action under way is stayed pending the determination of this application to amend;
3.
the draft advertisement (Annexure JF6) in the affidavit of Jennifer Farrar to be advertised in the Patent Journal
in November 2012 will, as published, be accepted as an advertisement in terms of section 51 of the Patents Act
57 of 1978 (as amended); and
4.
the first respondent is ordered to pay the costs of this application on a scale as between party and party, which
costs shall include the costs of the employment of two counsel."
For the applicant:
P Ginsberg SC and G Marriot instructed by Spoor & Fischer Attorneys, Pretoria
For the respondents:
AJ Bester instructed by Rademeyer Attorneys, Pretoria
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2000 (1) SA 649 (SCA) at para [3] [also reported at [1999] JOL 5811 (SCA) Ed].
Founding affidavit of Farrar, at 912, para [6].
Farrar's founding affidavit, at 10, para [6.1]
Farrar's founding affidavit, at 9, paras [6.2][6.8].
Respondent's heads of argument, at 2, para [5].
1972 BP 294 (T) at 301AC [also reported at [1972] 3 All SA 299 (T)].
Supra at para [20].
See s 51(6) and (7) quoted at para [8] above.
Mond Nichel Company Ltd's Application for a Patent [1956] RPC 189 (PAT) at 194; Bateman (supra) para [21].
Mond Nichel Company et al, supra, at para [20].
[2007] EWCA Civ 805, [2008] RPC 10.
BristolMyers Co v Beecham Group Limited 1981 (1) SA 399 (T) at 405406.
1979 BP 91 (CP) at 101FG.
Para [20].
See also Selero (Pty) Ltd and another v Chauvier and another 1984 (1) SA 128 (A) at 130H131A; Firestone (SA) (Pty)
Ltd v Gentiruco AG 1970 BP 302 (T) at 403F404A.
(1936) 53 RPC 323 at 348. Record, at 15, para [9.4.1]; at 160, para [28.1].
Oxford Dictionary; Thesaurus.
Record, at 39, lines 2224.
Record, at 88, para [19].
At 1319, respondent's heads of argument para [42].
Loc cit.
Respondent's heads of argument, loc cit.
Para [9.4.1] of founding affidavit, at 9, line 9.
Founding affidavit, at 88, para [19].
2003 (1) SA 155 (SCA) at para [1] [also reported at [2002] 4 All SA 138 (SCA) Ed].
1955 (4) SA 215 (A) at 223H; Electrical and Musical Industries v Lissen [1939] 56 RPC 23 at 39.