Ausplow Pty Ltd v Northpark Trading 3 (Pty) Ltd and Others (95/0812) [2010] ZAGPPHC 135; 2011 BIP 1 (CP) (5 October 2010)

Ausplow Pty Ltd v Northpark Trading 3 (Pty) Ltd and Others (95/0812) [2010] ZAGPPHC 135; 2011 BIP 1 (CP) (5 October 2010)

The court found that the SCA's order was ambiguous regarding whether the patent was provisionally revoked or merely suspended, and that there is a reasonable prospect that another court may interpret the order differently. The court also acknowledged that another court might limit its consideration to formal compliance when determining an amendment application and allow the validity and infringement issues to be determined at trial. Furthermore, the court accepted that technical expert evidence may be required to determine whether the amended claim overcomes the lack of inventiveness. In light of these factors, the court concluded that there is a reasonable prospect that a higher court...

Citation
[2010] ZAGPPHC 135
Parties
Applicant: Ausplow Pty Ltd; Respondent: Northpark Trading 3 (Pty) Ltd; Respondent: The Registrar of Patents; Respondent: Marais Engineering (Pty) Ltd; Respondent: Marais Steyn
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 October 2010
Case Number
95/0812
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Patent Amendment and Infringement
Outcome
Leave to appeal to the Supreme Court of Appeal is granted.
Judges
Murphy
Legal Topics
Patent Amendment, Provisional Revocation, Absolution From Instance, Inventive Step, Expert Evidence, Costs in Appeal
Intellectual Property Civil Procedure Patent Amendment Provisional Revocation Absolution From Instance Inventive Step Expert Evidence Costs in Appeal

Case Brief

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Parties

Ausplow Pty Ltd

Applicant

Northpark Trading 3 (Pty) Ltd

Respondent

The Registrar of Patents

Respondent

Marais Engineering (Pty) Ltd

Respondent

Marais Steyn

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the Supreme Court of Appeal intended to provisionally revoke the patent or suspend revocation pending amendment.
  2. 2 Whether infringement proceedings can be brought in respect of a provisionally revoked patent.
  3. 3 Whether the court should consider normal grounds for revocation when determining an amendment application or limit itself to formal compliance.

Ratio Decidendi

The court found that the SCA's order was ambiguous regarding whether the patent was provisionally revoked or merely suspended, and that there is a reasonable prospect that another court may interpret the order differently. The court also acknowledged that another court might limit its consideration to formal compliance when determining an amendment application and allow the validity and infringement issues to be determined at trial. Furthermore, the court accepted that technical expert evidence may be required to determine whether the amended claim overcomes the lack of inventiveness. In light of these factors, the court concluded that there is a reasonable prospect that a higher court...

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted.

Orders

  • The applicant is granted leave to appeal to the Supreme Court of Appeal.
  • The costs of this application will be costs in the appeal.