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South Africa Judgment

Court of the Commissioner of Patents

Astellas Pharma Incorporated v Medpro Pharmaceutica (Pty) Ltd and Others (Leave to Appeal) (2023/021642) [2024] ZACCP 2 (6 August 2024)

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01

Holding and result

The court found that the respondents did not meet the threshold set out in section 17(1)(a)(i) and (ii) of the Superior Courts Act. After considering the grounds for leave to appeal and the arguments presented, the court was not persuaded that there were reasonable prospects of success or any compelling reason for the appeal to be heard. Accordingly, leave to appeal was refused and costs were awarded against the respondents.

Court disposition

Leave to appeal is dismissed with costs.

Orders

  • Leave to appeal is dismissed.
  • The respondents are ordered to pay the costs, taxed on scale B.

02

Material facts

Parties

Astellas Pharma Incorporated

Applicant Counsel: G Marriott

Medpro Pharmaceutica (Pty) Ltd

Respondent Counsel: A Franklin SC

Cipla Medpro (Pty) Ltd

Respondent Counsel: K D Iles

The Registrar of Patents

Respondent

Amounts and remedies

  • Costs to Be Taxed on Scale B: ZAR 0

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment on Patent Amendment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the respondents failed to demonstrate reasonable prospects of success or any compelling reason for leave to appeal. The applicant argued that the original judgment was sound and that the amendment to the patent was properly granted. Costs should follow the result.
Respondent
The respondents argued that the judgment and orders dated 26 June 2024 were incorrect and that there are reasonable prospects of success on appeal. They relied on section 17(1)(a)(i) and (ii) of the Superior Courts Act, seeking leave to appeal to the Supreme Court of Appeal or the Full Bench of the Gauteng Division, Pretoria, and submitted that the issues raised are of sufficient importance to warrant reconsideration.

05

Court’s reasoning

  1. 01

    Section 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013

    Leave to appeal may only be granted if the court is of the opinion that the appeal would have reasonable prospects of success or there is some other compelling reason why the appeal should be heard.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the respondents did not meet the threshold set out in section 17(1)(a)(i) and (ii) of the Superior Courts Act. After considering the grounds for leave to appeal and the arguments presented, the court was not persuaded that there were reasonable prospects of success or any compelling reason for the appeal to be heard. Accordingly, leave to appeal was refused and costs were awarded against the respondents.

Obiter and limits

  • The court noted that the matter was disposed of electronically in accordance with current practice, and the date of handing down is deemed to be the date of electronic circulation.

Court disposition

Leave to appeal is dismissed with costs.

  • Leave to appeal is dismissed.
  • The respondents are ordered to pay the costs, taxed on scale B.

Source and reliance status

Court of the Commissioner of Patents

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Judgment text

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Source document

Court of the Commissioner of Patents

Judgment

[2024] ZACCP 2

IN

THE COURT OF THE COMMISSIONER OF PATENTS

FOR

THE REPUBLIC OF SOUTH AFRICA

Patent No. 2011/02406CDP

Case No. 2023/021642

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHERS JUDGES: NO

(3)

REVISED

DATE: 06 AUGUST 2024

SIGNATURE

In the matter between:

ASTELLAS

PHARMA INCORPORATED Applicant and

MEDPRO PHARMACEUTICA (PTY) LTD First Respondent

CIPLA MEDPRO (PTY) LTD Second Respondent

THE

REGISTRAR OF PATENTS Third Respondent This judgment is prepared and authored by the Judge whose name is reflected as such and is handed down electronically by circulation

to the parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines.

The date for handing down is deemed to be 06 August 2024.

SHORT REASONS AND JUDGMENT: LEAVE TO APPEAL

1. The First and Second Respondents [respondents] applied for leave to appeal to the Supreme Court of Appeal alternatively the Full Bench of the Gauteng Division of the High Court, Pretoria, against the whole judgment and orders 1 to 3 and 5 dated 26 June 2024 in which this Court dismissed the Respondents’ opposition to the Applicant’s application for leave to amend a patent, permitting the patent to be so amended.

2. The Respondents seek leave in terms of section 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2023 [Superior Courts Act].

3. This Court has heard the argument, considered the grounds raised in the Respondents’ application for leave to appeal and reconsidered the reasoned judgment and does not find the Respondents’ argument compelling and accordingly finds that the threshold of section 17(1)(a) (i) and (ii) have not been met.

In the premises the following order:

1. Leave to appeal is dismissed with costs, which costs are to be taxed on scale B.

L.A.

RETIEF

JUDGE

OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Appearances:

For the 1st and 2nd Respondents: Adv A Franklin SC Cell: 079 299 3792 Email: Franklin@lawcircle.co.za Adv K D Iles Cell: 072 312 2559 Email: Kiles@counsel.co.za Instructed by attorneys: Von Seidels Inc Tel: 021 526 2800 Email: ivdmerwe@vonseidels.co For the Applicant: Adv G Marriott Cell: 082 824 0616 Email: marriott@counsel.co.za Instructed by attorneys: ADAMS & ADAMS Tel: (012) 432 6201 Email: Alexis.Apostolidis@adams.africa Russell.Bagnall@adams.africa Date of hearing: 24 July 2024 Date judgment delivered: 06 August 2024

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Superior Courts Act, 10 of 2013

Legislation

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