H Lundbeck A/S and Another v Cipla Medpro (Pty) Ltd (89/4476) [2008] ZACCP 3; 2008 BIP 79 (CP) (20 June 2008)

H Lundbeck A/S and Another v Cipla Medpro (Pty) Ltd (89/4476) [2008] ZACCP 3; 2008 BIP 79 (CP) (20 June 2008)

The court found that the applicants failed to establish that the errors in claims 6 and 7 of the patent were clerical in nature. The evidence provided was vague, lacked factual support, and did not explain how the errors occurred. The applicants' delay in seeking correction or amendment was found to be culpable, as they were aware of the errors for years but only acted when their patent was challenged by the respondent. The proposed amendments to claims 6 and 7 would impermissibly broaden the scope of the patent, offending section 51(7) of the Patents Act. As a result, the patent was not wholly valid, and no relief could be granted on it. The applications for correction/amendment and...

Citation
[2008] ZACCP 3
Parties
Applicant: H Lundbeck A/S; Applicant: Lundbeck SA (Pty) Ltd; Respondent: Cipla Medpro (Pty) Ltd
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
20 June 2008
Case Number
89/4476
Procedural Posture
Urgent Application / Application for Correction/amendment of Patent and Interim Interdict
Outcome
Application for correction/amendment of the patent and interim interdict dismissed. Costs awarded against the applicants.
Judges
B.R. Southwood
Legal Topics
Patent Amendment, Clerical Error, Interim Interdict, Scope of Claims, Culpable Delay
Intellectual Property Patent Amendment Clerical Error Interim Interdict Scope of Claims Culpable Delay

Case Brief

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Parties

H Lundbeck A/S

Applicant

Lundbeck SA (Pty) Ltd

Applicant

Cipla Medpro (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Correction/amendment of Patent and Interim Interdict

Legal Issues

  1. 1 Whether the errors in claims 6 and 7 of South African Patent No 89/4476 are clerical and correctable under section 50 of the Patents Act.
  2. 2 Whether the applicants are entitled to amend the patent under section 51 of the Patents Act.
  3. 3 Whether the applicants are entitled to an interim interdict restraining the respondent from infringing the patent.

Ratio Decidendi

The court found that the applicants failed to establish that the errors in claims 6 and 7 of the patent were clerical in nature. The evidence provided was vague, lacked factual support, and did not explain how the errors occurred. The applicants' delay in seeking correction or amendment was found to be culpable, as they were aware of the errors for years but only acted when their patent was challenged by the respondent. The proposed amendments to claims 6 and 7 would impermissibly broaden the scope of the patent, offending section 51(7) of the Patents Act. As a result, the patent was not wholly valid, and no relief could be granted on it. The applications for correction/amendment and...

Court Disposition

Application for correction/amendment of the patent and interim interdict dismissed. Costs awarded against the applicants.

Orders

  • The application for correction/amendment of the patent is dismissed.
  • The application for an interim interdict is dismissed.