Gemfarm Investments (Pty) Ltd v Trans Hex Group Ltd and Another ([P] I 445 of 2005) [2009] NAHC 134 (7 April 2009)

Gemfarm Investments (Pty) Ltd v Trans Hex Group Ltd and Another ([P] I 445 of 2005) [2009] NAHC 134 (7 April 2009)

The Patents and Designs Proclamation, 1923 was not repealed by the Patents Act, 1952 as the latter was not applied to Namibia; the relevant provisions of the Proclamation remained in force at the time of the patent grant. Publication of acceptance of the complete specification was not required under Namibian law for an infringement action. The pleadings did not exclude all possible evidence that the patent was lawfully granted to the plaintiff, and the exceptions did not disclose a lack of cause of action.

Citation
[2009] NAHC 134
Parties
Plaintiff: Gemfarm Investments (Pty) Ltd; First Defendant: Trans Hex Group Ltd; Second Defendant: Moonstone Diamonds (South Africa) (Pty) Ltd
Court
High Court
Jurisdiction
Namibia
Judgment Date
7 April 2009
Case Number
[P] I 445 of 2005
Procedural Posture
Civil Patent Infringement / Ruling on Exceptions
Outcome
All exceptions dismissed with costs.
Legal Topics
Patent Validity, Jurisdiction, Interpretation of Statutes, Infringement Actions, Importation of Inventions
Source Language
English
Patent Law Constitutional Law Civil Procedure Patent Validity Jurisdiction Interpretation of Statutes Infringement Actions Importation of Inventions

Case Brief

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Parties

Gemfarm Investments (Pty) Ltd

Plaintiff

Trans Hex Group Ltd

First Defendant

Moonstone Diamonds (South Africa) (Pty) Ltd

Second Defendant

Procedural Posture

Civil Patent Infringement / Ruling on Exceptions

Legal Issues

  1. 1 Whether the Patents and Designs Proclamation, 1923 was repealed by the Patents Act, 1952 and thus not in force in Namibia at the time of the patent grant
  2. 2 Whether publication of acceptance of the complete specification was required for an infringement action
  3. 3 Whether the plaintiff, as an alleged importer, could lawfully obtain a patent under the Proclamation

Ratio Decidendi

The Patents and Designs Proclamation, 1923 was not repealed by the Patents Act, 1952 as the latter was not applied to Namibia; the relevant provisions of the Proclamation remained in force at the time of the patent grant. Publication of acceptance of the complete specification was not required under Namibian law for an infringement action. The pleadings did not exclude all possible evidence that the patent was lawfully granted to the plaintiff, and the exceptions did not disclose a lack of cause of action.

Court Disposition

All exceptions dismissed with costs.

Orders

  • All exceptions against the plaintiff’s claim are dismissed with costs, such costs to include the costs consequent upon the employment of one instructing and two instructed counsel.