South African Druggists Ltd. v Pfizer Inc. (612/87) [1989] ZASCA 65 (26 May 1989)

South African Druggists Ltd. v Pfizer Inc. (612/87) [1989] ZASCA 65 (26 May 1989)

The Supreme Court of Appeal held that the respondent had not derived adequate remuneration from the patent, as the delay in commercial exploitation was due to necessary development, testing, and regulatory approval—factors extraneous to the invention itself. The Court rejected the appellant's argument that the respondent recouped lost remuneration by increasing prices, finding that the recoupment reasoning is not a valid legal principle and that the prices for Feldene were competitive and not loaded. The respondent was not at fault for the lost time, and the invention did not suffer from inherent weaknesses preventing exploitation. The Court found that the actual remuneration was...

Citation
[1989] ZASCA 65
Parties
Appellant: South African Druggists Limited; Respondent: Pfizer Inc.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 May 1989
Case Number
612/87
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division Against the Order Granting Extension of Patent Term
Outcome
Appeal dismissed with costs, including the fees of two counsel.
Judges
Corbett, Hoexter, Nestadt, Kumleben, Nicholas
Legal Topics
Patent Extension, Adequate Remuneration, Lost Time Principle, Competitive Pricing, Discretion of Commissioner
Intellectual Property Patent Extension Adequate Remuneration Lost Time Principle Competitive Pricing Discretion of Commissioner

Case Brief

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Parties

South African Druggists Limited

Appellant

Pfizer Inc.

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division Against the Order Granting Extension of Patent Term

Legal Issues

  1. 1 Whether the patentee derived adequate remuneration from the patent within the meaning of section 39(1)(a) of the Patents Act.
  2. 2 Whether the delay in commercial exploitation was due to extraneous factors or inherent weaknesses in the invention.
  3. 3 Whether the respondent recouped lost remuneration by increasing prices after commencing sales.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent had not derived adequate remuneration from the patent, as the delay in commercial exploitation was due to necessary development, testing, and regulatory approval—factors extraneous to the invention itself. The Court rejected the appellant's argument that the respondent recouped lost remuneration by increasing prices, finding that the recoupment reasoning is not a valid legal principle and that the prices for Feldene were competitive and not loaded. The respondent was not at fault for the lost time, and the invention did not suffer from inherent weaknesses preventing exploitation. The Court found that the actual remuneration was...

Court Disposition

Appeal dismissed with costs, including the fees of two counsel.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs of the appeal, including the fees of two counsel.