Buzbee (Proprietary) Limited v Registrar of Patents and Anoter (2002/8482, A644/08) [2010] ZACCP 4; 2010 BIP 42 (CP) (14 April 2010)

Buzbee (Proprietary) Limited v Registrar of Patents and Anoter (2002/8482, A644/08) [2010] ZACCP 4; 2010 BIP 42 (CP) (14 April 2010)

The court held that the only grounds for revocation of a patent are those enumerated in section 61(1) of the Patents Act. The Minister, in promulgating Regulation 90(1) with a deeming provision for revocation by default, exceeded the powers conferred by the Act, rendering that provision invalid. Regulation 99 empowers the Registrar to extend time limits, and does not restrict such extensions to requests made before expiry. The Registrar was not functus officio and retained discretion to grant an extension even after the prescribed period had lapsed. The appeal was dismissed, and the Registrar's decision to grant the extension was upheld.

Citation
[2010] ZACCP 4
Parties
Appellant: Buzbee (Proprietary) Limited; Respondent: Registrar of Patents; Respondent: Cobb International Limited
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
14 April 2010
Case Number
2002/8482, A644/08
Procedural Posture
Civil Appeal / Appeal From Registrar's Decision on Extension of Time to File Counterstatement in Patent Revocation Proceedings
Outcome
Appeal dismissed with costs, including costs of senior counsel. Declaratory orders issued regarding invalidity of the deeming provision and the Registrar's power to extend time.
Judges
Ebersohn
Legal Topics
Patent Revocation, Extension of Time, Regulatory Ultra Vires, Default Judgment, Ministerial Powers
Intellectual Property Civil Procedure Patent Revocation Extension of Time Regulatory Ultra Vires Default Judgment Ministerial Powers

Case Brief

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Parties

Buzbee (Proprietary) Limited

Appellant

Registrar of Patents

Respondent

Cobb International Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Registrar's Decision on Extension of Time to File Counterstatement in Patent Revocation Proceedings

Legal Issues

  1. 1 Whether the Registrar of Patents may extend the time for filing a counterstatement in revocation proceedings after the expiry of the prescribed period.
  2. 2 Whether the deeming provision in Patent Regulation 90(1) constitutes a valid ground for revocation of a patent.
  3. 3 Whether the Minister exceeded statutory powers by introducing a default-based revocation ground via regulation.

Ratio Decidendi

The court held that the only grounds for revocation of a patent are those enumerated in section 61(1) of the Patents Act. The Minister, in promulgating Regulation 90(1) with a deeming provision for revocation by default, exceeded the powers conferred by the Act, rendering that provision invalid. Regulation 99 empowers the Registrar to extend time limits, and does not restrict such extensions to requests made before expiry. The Registrar was not functus officio and retained discretion to grant an extension even after the prescribed period had lapsed. The appeal was dismissed, and the Registrar's decision to grant the extension was upheld.

Court Disposition

Appeal dismissed with costs, including costs of senior counsel. Declaratory orders issued regarding invalidity of the deeming provision and the Registrar's power to extend time.

Orders

  • It is declared that the passage 'the patent shall be deemed to be revoked' in Patent Regulation 90(1) is invalid and of no force.
  • It is declared that the Registrar may, in response to a request for extension of the period in which to file a counterstatement made after expiry of the two-month period prescribed in Patent Regulation 90(1), extend the period in which to file a counterstatement.