Timrite (Pty) Ltd and Another v Vesper Projects (Pty) Ltd and Another (2023/063620) [2025] ZACCP 2 (12 June 2025)

Timrite (Pty) Ltd and Another v Vesper Projects (Pty) Ltd and Another (2023/063620) [2025] ZACCP 2 (12 June 2025)

The court found that the issues raised in the amendment application, specifically the objections of lack of fair basis and continuing invalidity, are intertwined with those in the pending declaration of non-infringement application. Determining the amendment application in isolation would risk rendering the pending proceedings irrelevant and could prejudice the parties. The court has discretion under section 51(9) of the Patents Act to manage the proceedings as it sees fit. Given the overlap and the fact that the parties' arguments and evidence are rooted in the same expert affidavit, the court postponed the amendment application to be heard simultaneously with the declaration...

Citation
[2025] ZACCP 2
Parties
Applicant: Timrite (Pty) Ltd; Applicant: Tufbag (Pty) Ltd; Respondent: Vesper Projects (Pty) Ltd; Respondent: The Registrar of Patents
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
12 June 2025
Case Number
2023/063620
Procedural Posture
Amendment Application / Application for Amendment of Patent Specification; Interlocutory Order
Outcome
The application to amend the patent specification is postponed to be heard together with the pending declaration of non-infringement application, or after its final determination. Costs are reserved.
Judges
K Strydom
Legal Topics
Patent Amendment, Fair Basis, Continuing Invalidity, Prior Art, Procedural Separation
Intellectual Property Patent Amendment Fair Basis Continuing Invalidity Prior Art Procedural Separation

Case Brief

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Parties

Timrite (Pty) Ltd

Applicant

Tufbag (Pty) Ltd

Applicant

Vesper Projects (Pty) Ltd

Respondent

The Registrar of Patents

Respondent

Procedural Posture

Amendment Application / Application for Amendment of Patent Specification; Interlocutory Order

Legal Issues

  1. 1 Whether the proposed amendments to the patent specification are fairly based on matter disclosed before amendment.
  2. 2 Whether the continuing invalidity objection should be determined in the amendment application or deferred to pending proceedings.
  3. 3 Whether the application to amend should be postponed due to overlap with the pending declaration of non-infringement.

Ratio Decidendi

The court found that the issues raised in the amendment application, specifically the objections of lack of fair basis and continuing invalidity, are intertwined with those in the pending declaration of non-infringement application. Determining the amendment application in isolation would risk rendering the pending proceedings irrelevant and could prejudice the parties. The court has discretion under section 51(9) of the Patents Act to manage the proceedings as it sees fit. Given the overlap and the fact that the parties' arguments and evidence are rooted in the same expert affidavit, the court postponed the amendment application to be heard simultaneously with the declaration...

Court Disposition

The application to amend the patent specification is postponed to be heard together with the pending declaration of non-infringement application, or after its final determination. Costs are reserved.

Orders

  • The application to amend the complete specification of South Africa patent of addition no. 2010/06044 is postponed.
  • The amendment application may be set down for determination simultaneously with the application for declaration of non-infringement under case no 2023-063620, subject to the discretion of the court in that application.