Merial and Others v Cipla Vet (Pty) Ltd (20772/2014) [2016] ZASCA 57; 2016 BIP 1 (SCA) (1 April 2016)

Merial and Others v Cipla Vet (Pty) Ltd (20772/2014) [2016] ZASCA 57; 2016 BIP 1 (SCA) (1 April 2016)

The Supreme Court of Appeal found that the patent claims, specifically claim 1, are sufficiently clear and certain for a skilled addressee to understand the scope of protection. The dual or interchangeable functions of ingredients do not render the claims unclear, as a formulator would select ingredients based on their function in the composition. The crystallisation inhibitor test in claim 1 is sufficiently certain and applicable. The evidence of Merial's expert, Dr Witchey, was preferred over that of Cipla's expert, Professor Barbour, whose tests were found unreliable due to methodological flaws. There was no credible evidence that the differences in ingredients or their sources would...

Citation
[2016] ZASCA 57
Parties
Appellant: Merial; Appellant: Merial Limited; Appellant: Merial South Africa (Pty) Ltd; Respondent: Cipla Vet (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 April 2016
Case Number
20772/2014
Procedural Posture
Civil Appeal / Appeal From the Court of the Commissioner of Patents
Outcome
Appeal upheld. The order of the court below is set aside and substituted with an order interdicting and restraining Cipla Vet (Pty) Ltd from infringing the specified claims of the patent, ordering delivery up of infringing products, an inquiry into damages or reasonable royalty, and costs awarded to the appellants...
Judges
Navsa, Leach, Petse, Dambuza, Kathree-Setiloane
Legal Topics
Patent Infringement, Validity of Patent Claims, Clarity of Claims, Pharmaceutical Compositions, Expert Evidence, Interpretation of Patent Specifications
Intellectual Property Commercial and Corporate Patent Infringement Validity of Patent Claims Clarity of Claims Pharmaceutical Compositions Expert Evidence Interpretation of Patent Specifications

Case Brief

Summary, issues, holding and outcome

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Parties

Merial

Appellant

Merial Limited

Appellant

Merial South Africa (Pty) Ltd

Appellant

Cipla Vet (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the Court of the Commissioner of Patents

Legal Issues

  1. 1 Whether the patent claims, specifically claim 1, are sufficiently clear and certain to be valid.
  2. 2 Whether the respondent's product Fiprotec infringes claims 1, 2, 3, 7 to 15 and 18 to 20 of the patent.
  3. 3 Whether the dual or interchangeable functions of ingredients in the patent specification render the claims unclear or invalid.

Ratio Decidendi

The Supreme Court of Appeal found that the patent claims, specifically claim 1, are sufficiently clear and certain for a skilled addressee to understand the scope of protection. The dual or interchangeable functions of ingredients do not render the claims unclear, as a formulator would select ingredients based on their function in the composition. The crystallisation inhibitor test in claim 1 is sufficiently certain and applicable. The evidence of Merial's expert, Dr Witchey, was preferred over that of Cipla's expert, Professor Barbour, whose tests were found unreliable due to methodological flaws. There was no credible evidence that the differences in ingredients or their sources would...

Court Disposition

Appeal upheld. The order of the court below is set aside and substituted with an order interdicting and restraining Cipla Vet (Pty) Ltd from infringing the specified claims of the patent, ordering delivery up of infringing products, an inquiry into damages or reasonable royalty, and costs awarded to the appellants...

Orders

  • The appeal is upheld with costs including the costs of two counsel.
  • The order of the court below is set aside and substituted as follows: