Astellas Pharma Incorporated v Medpro Pharmaceutica (Pty) Ltd and Others (Leave to Appeal) (2023/021642) [2024] ZACCP 2 (6 August 2024)
- Citation
- [2024] ZACCP 2
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Court of the Commissioner of Patents
- Panel
- L.A. Retief
- Case number
- 2023/021642
More details
- Court
- Court of the Commissioner of Patents
- Panel
- L.A. Retief
- Case number
- 2023/021642
On this page
Professional case brief
Research organized from the available case record
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 MarriottMedpro Pharmaceutica (Pty) Ltd
Respondent Counsel: A Franklin SCCipla Medpro (Pty) Ltd
Respondent Counsel: K D IlesThe Registrar of Patents
RespondentAmounts and remedies
- Costs to Be Taxed on Scale B: ZAR 0
03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Patent Amendment
04
Questions and positions
Legal issues
- 01
Whether the respondents have met the threshold for leave to appeal under section 17(1)(a)(i) and (ii) of the Superior Courts Act.
- 02
Whether there are reasonable prospects of success or compelling reasons for the appeal to be heard.
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
Legal principles
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of the Commissioner of Patents
Judgment
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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