Merial and Others v Cipla Vet (Pty) Ltd (96/8057) [2014] ZACCP 3; 2014 BIP 42 (CP) (24 July 2014)

Merial and Others v Cipla Vet (Pty) Ltd (96/8057) [2014] ZACCP 3; 2014 BIP 42 (CP) (24 July 2014)

The plaintiffs failed to discharge the onus to prove, on a balance of probabilities, that Fiprotec includes a crystallization inhibitor system that satisfies the test in integer b) of claim 1 of the patent, as the evidence did not reliably demonstrate that the actual ingredients in Fiprotec would inhibit crystallization as required. The plaintiffs also failed to prove that ethanol in Fiprotec constitutes an organic co-solvent as contemplated in integer d). The weaknesses in the defendant's evidence do not suffice to infer infringement, and the plaintiffs' evidence was insufficiently specific to the actual product. The defendant's challenges to the validity of the patent on grounds of lack...

Citation
[2014] ZACCP 3
Parties
Plaintiff: Merial; Plaintiff: Merial Limited; Plaintiff: Merial South Africa (Pty) Ltd; Defendant: Cipla Vet (Pty) Ltd
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
24 July 2014
Case Number
96/8057
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Plaintiffs' action dismissed with costs, including costs of two counsel and qualifying fees of Prof Barbour. Defendant to pay wasted costs occasioned by amendment of its plea.
Judges
Murphy
Legal Topics
Patent Infringement, Crystallization Inhibitor Test, Onus of Proof, Sufficiency of Specification, Clarity of Claims
Intellectual Property Patent Infringement Crystallization Inhibitor Test Onus of Proof Sufficiency of Specification Clarity of Claims

Case Brief

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Parties

Merial

Plaintiff

Merial Limited

Plaintiff

Merial South Africa (Pty) Ltd

Plaintiff

Cipla Vet (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the defendant's product Fiprotec infringes claim 1 of Patent No. 96/8057 by including a crystallization inhibitor that satisfies the test in integer b).
  2. 2 Whether Fiprotec includes ethanol as an organic co-solvent as contemplated in integer d) of claim 1.
  3. 3 Whether the patent specification is invalid for lack of clarity, insufficiency, or inutility.

Ratio Decidendi

The plaintiffs failed to discharge the onus to prove, on a balance of probabilities, that Fiprotec includes a crystallization inhibitor system that satisfies the test in integer b) of claim 1 of the patent, as the evidence did not reliably demonstrate that the actual ingredients in Fiprotec would inhibit crystallization as required. The plaintiffs also failed to prove that ethanol in Fiprotec constitutes an organic co-solvent as contemplated in integer d). The weaknesses in the defendant's evidence do not suffice to infer infringement, and the plaintiffs' evidence was insufficiently specific to the actual product. The defendant's challenges to the validity of the patent on grounds of lack...

Court Disposition

Plaintiffs' action dismissed with costs, including costs of two counsel and qualifying fees of Prof Barbour. Defendant to pay wasted costs occasioned by amendment of its plea.

Orders

  • The action is dismissed with costs, such costs to include the costs of two counsel and the qualifying fees of Prof Barbour.
  • The defendant is ordered to pay the wasted costs occasioned by its amendment of its plea.