Cipla Medpro (Pty) Ltd v Aventis Pharma SA, Aventis Pharma SA and Others v Cipla Life Sciences (Pty) Ltd and Others (139/2012, 138/2012) [2012] ZASCA 108; 2013 (4) SA 579 (SCA); 2012 BIP 30 (SCA) (26 July 2012)

Parties

Procedural Posture

Civil Appeal / Appeal From Commissioner of Patents (first Instance)

Legal Issues

1. 1 Whether the amendment to claim 1 of South African Patent 93/8936 broadened the scope of the patent in contravention of s 51(7) of the Patents Act.
2. 2 Whether claim 1 of the patent is vague or invalid for lack of clarity.
3. 3 Whether Cipla's conduct constitutes contributory infringement under South African law.

Ratio Decidendi

The Supreme Court of Appeal held that the amendment to claim 1 of South African Patent 93/8936 did not broaden the scope of the patent but merely clarified the prior state of the constituents, and thus did not contravene s 51(7) of the Patents Act. The claim was found to be clear and valid, with no grounds for revocation based on lack of clarity, novelty, or inventive step. Cipla's conduct in importing and offering for disposal the components of the patented composition, with the intention that health workers would combine them to infringe the patent, constituted contributory infringement under South African law. The court found that damages would not be an adequate remedy due to the...

Court Disposition

Appeal in amendment proceedings dismissed with costs; appeal in infringement proceedings upheld with costs; interim interdict granted against Cipla pending final relief.

Orders

• The appeal in the s 51(1) proceedings (Case No 139/2012) is dismissed with costs, including costs of two counsel.
• The appeal in the infringement proceedings (Case No. 138/2012) is upheld with costs, including costs of two counsel, to be paid by the respondents jointly and severally.