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[2014] ZASCA 201
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Bayer Pharma AG v Pharma Dynamics (Pty) Ltd (1066/2013) [2014] ZASCA 201; 2014 BIP 87 (SCA) (28 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No 1066/2013
In
the matter between:
BAYER
PHARMA AG (FORMERLY BAYER
SCHERING
PHARMA
AG)
.............................................................................................
APPELLANT
and
PHARMA
DYNAMICS (PTY)
LTD
.............................................................................
RESPONDENT
Neutral
citation:
Bayer Pharma AG v Pharma
Dynamics (Pty) Ltd
(1066/2013)
[2014]
ZASCA 201
(28 November 2014).
Coram:
Brand, Lewis, Theron JJA and Schoeman and Dambuza
AJJA
Heard:
19 November 2014
Delivered:
28 November 2014
Summary:
Application for amendment of registered patent in terms of s 51
of
Patents Act 57 of 1978
– objection that proposed amendment
will render claim 1 of the patent unclear – further opposition
on the basis that,
in any event, the application should be refused
for reasons of ‘undue delay’ and ‘reprehensible
conduct’
on the part of the patentee.
ORDER
On
appeal from:
The court of the
Commissioner of Patents of South Africa (Potterill J, sitting as
Commissioner of Patents):
1 The appeal is
upheld with costs, including the costs of two counsel.
2 The order of the
Commissioner of Patents is set aside and the following order is
substituted:
‘
(a)
The amendment to South African Patent 2002/1968 applied for by the
applicant is granted.
(b) The respondent
is ordered to pay the applicant’s costs, including the costs of
two counsel.’
JUDGMENT
Brand
JA
(Lewis, Theron JJA and Schoeman
and Dambuza AJJA concurring):
[1]
This is an appeal against the judgment and order of Potterill J,
sitting as the Commissioner of Patents. The appellant is a
German
company, Bayer Pharma Aktiengesellschaft (Bayer). It is the patentee
of South African patent 2002/1968 (the 2002 patent
or the patent in
suit), which is for an invention entitled ‘Pharmaceutical
combination of ethinylestradiol (EE) and drospirenone
(DSP) for use
as a contraceptive’. The respondent, Pharma Dynamics (Pty) Ltd
(Pharma), is a generic pharmaceutical company
and the South African
affiliate of Lupin Ltd, a transnational company based in India. The
appeal originates from an application
to amend the 2002 patent in
terms of s 51(1) of the Patents Act 57 of 1978 (the Act). Pharma
opposed the application which
required the matter to be heard by the
court a quo pursuant to s 51(3)(
b
)
of the Act. In the event, Potterill J dismissed the application with
costs, but afforded Bayer leave to bring an appeal to this
court.
[2]
As foreshadowed by the description in its title, the 2002 patent
concerns a female oral contraceptive, containing the active
pharmaceutical ingredients DSP and EE. It was filed in the South
African Patent Office on 27 February 2002, but with the priority
date
of 31 August 1999, which it claimed from patent applications in
Europe and the United States. In 2004 Bayer filed Patent 2004/4083
(the 2004 patent) in terms of s 37 of the Act as a so-called
‘divisional patent’ based on the 2002 patent as its
‘parent patent’.
[3]
In March 2011, Pharma obtained approval from the Medical Control
Council to import and sell an oral contraceptive called Ruby.
This
product is the generic equivalent of the Yasmin product sold by Bayer
under its 2002 and 2004 patents. Alleging that Ruby
constituted an
infringement of both its 2002 and 2004 patents, Bayer brought an
application in the court a quo for an interim interdict.
In due
course Bayer also instituted an action for a final interdict
prohibiting Pharma from infringing the claims of the 2002 and
2004
patents. The litigation between the parties which ensued proceeded
along a rather tortuous route. Since the amendment application
under
consideration formed part of that process, it becomes necessary to
traverse at least part of that route.
[4]
Although Bayer initially founded its case on both the 2002 and the
2004 patents, it soon abandoned reliance on the 2002 patent
in both
the interim interdict application as well as the action proceedings.
As a further step Bayer applied for the amendment
of the 2004 patent.
That application was heard together with the application for the
interim interdict, which by then had been
confined to the 2004
patent. Despite opposition by Pharma to both these applications,
Bayer was successful in that on 14 November
2011 Vorster AJ granted
the interim interdict and the amendment to the 2004 patent sought.
That judgment has since been reported
as
Bayer
Schering Pharma AG & another v Pharma Dynamics (Pty) Ltd &
another
2011 BIP 73 (CP).
[5]
In the action for a permanent interdict that followed, Pharma not
only denied that it infringed the 2004 patent, but counterclaimed
for
the revocation of that patent on various grounds. Eventually
Pretorius J, sitting as the Commissioner of Patents held, however,
that the patent was valid and that Ruby had infringed it. In
consequence Pretorius J granted the relief sought by Bayer and
dismissed
the counterclaim. The appeal by Pharma against that
judgment was recently dismissed by this court (see
Pharma
Dynamics (Pty) Ltd v Bayer Pharma AG
(468/130)
[2014] ZASCA 123
(19 September 2014).
[6]
After achieving success before Vorster AJ in November 2011, but
before the judgment by Pretorius J, Bayer brought its application
to
amend the 2002 patent, which eventually gave rise to this appeal. The
amendments sought by Bayer are quite extensive in particularity
and
not uncomplicated in content. Broadly speaking, however, Bayer sought
to (a) delete a number of paragraphs from the body of
the patent
specification; (b) delete all of the claims of the 2002 patent,
except claim 1; (c) limit claim 1 by: (i) including
certain extra
features or integers which do not form part of the claim in its
unamended form; (ii) by limiting the dosage ranges
in the claim; and
(iii) adding the words ‘and in a rapid dissolution form’
as a further limitation to the claim.
[7]
Initially Pharma’s opposition to the amendment relied on
various grounds. Those remaining on appeal are, however, limited
to
the following three contentions:
(a) First, that
claim 1 of the 2002 patent would, after amendment, be invalid for
lack of clarity as contemplated by s 61(1)(
f
)(i) of the
Act;
(b) Secondly, that
there has been culpable delay on the part of Bayer in bringing the
amendment application;
(c)
Thirdly, that Bayer was guilty of ‘reprehensible conduct’
prior to the application to amend.
[8]
In its judgment the court a quo upheld Pharma’s first objection
based on the proposed amendment’s lack of clarity.
In
consequence the court found it unnecessary to consider the
discretionary grounds of ‘culpable delay’ and
‘reprehensible
conduct’. In similar fashion, I shall deal
with the lack of clarity-ground first.
Lack
of clarity
[9]
The principle is well-established that any ground for revocation of a
patent may be advanced in opposition to a proposed amendment.
The
underlying consideration, as formulated in
Bendz Ltd & another
v South African Lead Works Ltd
1963 (3) SA 797
(A) at 803E, seems
to be that no purpose can be served by allowing an amendment which
will set the patent up for revocation. One
such ground for
revocation, contained in s 61(1)(
f
)(i) of the Act, is
‘that the claims of the complete specification concerned are
not – clear’. In determining
whether or not a claim is
sufficiently clear for purposes of this provision, I find guidance in
the principles established by this
court in a number of cases, such
as
Letraset Ltd v Helios Ltd
1972 (3) SA 245
(A) 249H-251B;
Roman Roller CC & another v Speedmark Holdings (Pty) Ltd
[1995] ZASCA 78
;
1996
(1) SA 405
(A) 419B-G;
Ausplow (Pty) Ltd v North Park Trading 3
(Pty) Ltd & others
[2011] 4 All SA 221
(SCA) para 20.
Included amongst these principles are the following, which are
pertinent:
(a) It is the duty
of a patentee to state clearly and distinctly the nature and limits
of its claim so as to define its monopoly
and so that others know
exactly what they may and may not do. The degree of clarity required
is that which leads to reasonable
certainty. ‘Absolutism does
not perch happily on the banners of our law’ (per Holmes JA in
Letraset
250B).
(b) The court must
view the patent through the eyes of the skilled addressee in the
relevant art. In doing so the court may take
into account that the
addressee is expected to use reasonable skill and intelligence in
interpreting the language of the patent.
The addressee is not
required to struggle unduly with it, but must make the best of it and
not adopt an attitude of studied obtuseness.
(c) The court may
also accept that the skilled person, when considering a claim, should
rule out interpretations which are illogical
or which do not make
technical sense. The addressee should try to arrive at an
interpretation which is technically sensible and
takes into account
the whole disclosure of the patent; that the patent will be construed
with a mind willing to understand rather
than to misunderstand.
(d) If words or
expressions in a claim are defined by what is said in the body of the
specification, the language of the claim must
be construed
accordingly.
(e)
In determining whether the limits of the monopoly are sufficiently
defined, technical terms are to be interpreted in the light
of
evidence given by witnesses skilled in the art. But words which have
no special technical meaning are to be interpreted by the
court and
are to be given their natural and ordinary meaning as read in their
context.
[10]
The lack of clarity objection is aimed, as I have said, at claim 1 as
it will read in its proposed amended form. In its unamended
form,
claim 1 reads as follows:
‘
A
pharmaceutical composition comprising;
as a first active
agent drospirenone in an amount corresponding to a daily dosage, on
administration of the composition, of from
about 2 mg to 4 mg, and as
a second active agent, ethinylestradiol in an amount corresponding to
a daily dosage of from about 0.01
mg to 0.05 mg, together with one or
more pharmaceutically acceptable carriers or excipients, wherein said
drospirenone is in micronised
form.’
After
the proposed amendment, claim 1 will read as follows (with the
additions and other changes emphasised for convenience):
‘
A
pharmaceutical composition in
an oral
form and in the form of a tablet, a pill or a capsule
comprising:
as
a first active agent drospirenone in an amount corresponding to a
daily dosage, on administration of the composition, of
3
mg
, and as a second active agent,
ethinylestradiol in an amount corresponding to a daily dosage of
0.015 mg to 0.03 mg
,
together with one or more pharmaceutically acceptable carriers or
excipients, wherein said drospirenone is in micronised form
and
in a rapid dissolution form
.’
[11]
Pharma’s contention, which found favour with the court a quo,
is that the introduction of the words ‘in a rapid
dissolution
form’ will render the claim unclear. In this regard it is
evident from the way in which the objection was formulated,
that it
was not aimed at the phrase itself. In other words, it was not
contended that the meaning of ‘in rapid dissolution
form’
is unclear. Any contention to that effect would be met by the fact
that the expression ‘rapid dissolution’
is defined in the
body of the specification to mean ‘the dissolution of at least
70% over about 30 minutes, in particular
at least 80% over about 20
minutes, of drospirenone from a tablet preparation containing 3mg of
drospirenone in 900ml of water
at 37ºC determined by the USP
XXIII Paddle Method using a USP dissolution test apparatus 2 at 50
rpm.’
[12]
The ambiguity will result, so Pharma’s objection went, from
introducing this phrase in conjunction with the integer that
the DSP
is provided in micronised form. In evaluating this objection the
court a quo started out from the premise that ‘this
is a
product claim and I need not understand how the product is
manufactured’. In addition the court accepted that the term
‘micronised’ is not technical in that it means nothing
more than ‘to break up into very small particles’
and
that, while ‘rapid dissolution form’ is technical, it is
specifically defined in the specification.
[13]
Setting out from these points of departure, the court a quo’s
reasoning as to why the clarity objection should be upheld,
went
along the following lines:
(a) According to the
specification of the patent in suit the inventor had found that the
rapid dissolution rate as defined can be
achieved by providing the
DSP in micronised form or, alternatively, by dissolving the DSP in a
suitable solvent, eg methanol, and
to spray the solution on the
surface of inert carrier particles followed by incorporation of these
particles in the pharmaceutical
composition.
(b) It follows that
the rapid dissolution is the result of the micronisation of the DSP.
Conversely, that the purpose of micronisation
is to achieve rapid
dissolution.
(c) By introducing
the additional integer that the micronised DSP must also be ‘in
rapid dissolution form’, the claim
becomes unclear, because it
raises the question whether a further step must be taken to render
the DSP in a rapid dissolution form
and what that step would be.
Or,
as summarised in the words of the court a quo:
‘
.
. . [I]n the body of the specification of the patent any reference to
rapid dissolution is only in context of the result of micronisation
or the “spraying on” of the drospirenone. No further
alternative methods of achieving “rapid dissolution”
are
described in the specification and the question arises whether a
further step must be taken to render the drospirenone “in
a
rapid dissolution form” or what this step would be. Whereas the
dissolution rate was a result of the process of the micronisation
of
drospirenone it is now not clear whether it is an added or different
requirement and not only a result of the micronisation.’
[14]
Before us it was common cause that the starting point of the court a
quo’s reasoning, namely that this is a product claim
as opposed
to a method claim, cannot be faulted. But if this is so, it follows,
in my view, that the potential infringer need not
concern itself –
and neither need the court – with how the product is
manufactured. The question whether ‘further
‘steps’
need to be taken in the process of manufacturing the product of claim
1, is of no consequence. All that requires
consideration are the
constituent elements and properties of the allegedly infringing
product in its final form. This follows from
the test for determining
infringement as formulated, eg in
Letraset
v Helios Ltd supra
at 274G-H, namely
that it involves a comparison between the allegedly infringing
product and the words of the patent claim. If the
product falls
within the ambit of the claim an infringement had been established,
otherwise it had not.
Cadit quaestio
.
[15]
Moreover, it was common cause in argument before us that the court a
quo was right in accepting (a) that micronisation is not
a technical
term and (b) that, while rapid dissolution may be technical, it is
defined in the specification of the patent. In this
light, I believe
it should therefore create no problem for the potential infringer to
establish whether or not (a) the DSP in its
composition is micronised
and (b) the dissolution profile of the DSP in its composition falls
within the scope of ‘rapidly
dissolving’ as defined in
the patent specification. If the infringer’s pharmaceutical
product satisfies both of these
tests, then the product infringes the
claim of the 2002 patent. Conversely, if the infringer’s
product does not satisfy both
of these requirements, then it does
not. I can find nothing unclear about this.
[16]
Formulating the same proposition somewhat differently, counsel for
Pharma argued before us that inasmuch as it is unclear whether
rapid
dissolution is merely a result of micronisation or whether something
additional is required, the potential infringer will
be confused as
to whether further steps need to be taken in order to constitute an
infringement. But despite the different formulation,
I remain
unpersuaded by the argument. Even assuming that, in accordance with
the specification of the patent in suit, micronising
DSP will result
in the composition of claim 1 being rapidly dissolving, this does not
render the patent unclear. A potential infringer
does not need to
know whether a further step needs to be taken in the preparation of
the pharmaceutical composition to render DSP
both micronised and
rapid dissolving. The forbidden field of claim 1, as sought to be
amended (even if found to be tautologous),
is clearly defined. All
infringers would know exactly what they may and may not do.
[17]
What is more, I believe that an enquiry at a somewhat more
sophisticated level leads to the same conclusion. The starting point
of this enquiry relies on the crystallised principle of patent
interpretation, that it must be read through the eyes of a person
skilled in the art. This being so, it must follow, in line with
common experience, that even non-technical words may, in the context
of a patent, have a meaning to a person skilled in the art which is
different from the one conveyed by the literal meaning of the
words
to the layperson. Ergo, even a conclusion that the literal words
convey a meaning to the layperson which is unclear, would
call for an
enquiry at a more sophisticated level before the claim can be held to
be invalid for lack of clarity. That enquiry
is: do these words in
the context of the patent, convey a meaning to a person skilled in
the art, which is unclear?
[18]
The evidence by Bayer’s expert – which stands
uncontradicted by any expert on behalf of Pharma – was that
the
dissolution rate of micronised DSP from a tablet preparation may be
slowed down through the use of techniques well-known to
those skilled
in the art. For example, by applying an enteric coat to the tablet.
Carriers or excipients that retard rather than
promote dissolution
(which are expressly contemplated in the patent) would be another
example of doing so. Where a potential infringer
therefore uses an
enteric coat or an inert carrier in its composition that slows down
the dissolution rate of micronised DSP to
a degree that it no longer
dissolves at the rate defined in the patent, that product will not
infringe the patent. In this light
the court a quo’s finding
that, post amendment, the claim may require ‘a further step’
to be taken in respect
of the DSP in order to achieve the rapid rate
of dissolution, is in my view unwarranted. As the skilled person
would understand
the claim, a potential infringement can be avoided
by slowing down the dissolution rate of the micronised DSP contained
in the
tablet to below the level of ‘rapid dissolution’.
[19]
For these reasons I do not agree with the court a quo’s
conclusion that the proposed amendment will render claim 1 of
the
patent unclear. It follows that in my view the refusal of the
amendment application on that basis cannot be sustained. That,
however, is not the end of the matter. It is settled law that,
although an amendment may satisfy all substantive requirements,
the
Commissioner nonetheless has a discretion to refuse it. As we know,
Pharma advanced two grounds as to why the Commissioner
should
exercise that discretion adverse to Bayer, namely that Bayer was
guilty of ‘culpable delay’ and ‘reprehensible
conduct’. Unlike the Commissioner, we now have to consider
these contentions in the light of our contrary finding that the
amended patent would not be unclear. Yet, in considering the two
grounds relied upon by Pharma separately, the overall approach
in the
exercise of this discretion, as directed by authority, starts out
from the premise that amendments will ordinarily be granted,
unless
the conduct of the patentee was blameworthy to an extent that
warrants refusal, despite compliance with substantive requirements
(see eg
Interfelt Products (Pty) Ltd v
Feltex Ltd
[1972]
3 All SA 299
(T) at 303).
Culpable
delay
[20]
Underlying Pharma’s charge of culpable delay is its contention
that Bayer must have known that the 2002 patent was invalid
for a
number of years prior to the amendment application. As the factual
basis for its contention Pharma relied on the proposition
that the
2002 patent in its unamended form includes within its scope non-oral,
non-solid pharmaceutical combinations and that the
patent is invalid
in this form for lack of an inventive step. This basis in turn
derives from two passages in the specification
of the patent in suit
– which Bayer now seeks to delete – relating to non-oral,
non-solid types of composition.
[21]
As a matter of law, an objection on the ground of culpable delay
needs to satisfy a number of requirements. The two of these
that I
find most pertinent appear from the following dicta by Nicolas AJA in
South African Druggists Ltd v Bayer AG
1989 (4) SA 103
(A)
107I-108F:
‘
The
legal position on the question of delay on the part of a patentee in
applying for amendments has been considered in a number
of cases. A
deliberate intention to delay knowing full well that some of the
claims are invalid can in some circumstances be a
bar to amendment.
Even though a patentee never attempted to enforce them he has created
an area which prevented competitors from
freely entering it.’
And:
‘
Mere
delay without actual or potential prejudice is unlikely to result in
an amendment being refused.’
(See
also eg
Barmac Associates Ltd v SA
Dynamics
1991 BP 16 (CP) 20G;
Denton
Engineering (Pty ) Ltd & another v J P McKelvey & others
1997
BIP 113 (CP) 121-122.)
[22]
I propose to deal with the requirement of prejudice first, because as
I see it, the reliance on culpable delay should founder
on this basis
alone. I say that for the reasons that follow. Pharma made no
allegation whatsoever that it has been prejudiced by
the delay in the
bringing of the application. Indeed, Bayer’s expert says the
following in her answering affidavit, which
has not been denied or
even dealt with in any way on behalf of Pharma in reply:
‘
It
is important, firstly, under this heading to note that it is highly
improbable that any third party (including the respondent)
will have
been prejudiced by the fact that the claims of the 2002 patent prior
to the amendment covered non-oral, non-solid dosage
forms. As far as
I am aware, no one has ever registered or produced a non-oral,
non-solid pharmaceutical composition falling within
the scope of the
claims of the 2002 patent.
It
should also be borne in mind that generics companies such as the
respondent seek to replicate innovator medicines which are already
on
the market. To the best of the patentee’s knowledge no one
other than the patentee’s licensee and the respondent
have
registered products in South Africa which relate to the Bayer
products. As the patentee has never commercialised a non-oral,
non-solid pharmaceutical dosage form, it would be most unlikely that
any generics companies would ever seek to market such a formulation
as to do so would require extensive investment on their part in
obtaining regulatory approval.’
[23]
Nonetheless, to complete the picture, I shall also deal with Pharma’s
contention that Bayer must have known for a number
of years that the
2002 patent was invalid, but intentionally delayed the amendment
application. The factual basis for the contention,
as we know,
derives from two passages in the patent specification, which Bayer
now seeks to delete, which relate to non-oral, non-solid
types of
composition. However, according to Bayer’s answering affidavit,
its experts always thought that despite these passages
in the
specification, the invention protected by the patent in suit was
clearly confined to solid oral formulations and that no
skilled
addressee would understand it differently. This statement is
supported by the evidence of an independent expert, Prof Martyn
Davies, during the trial action for a final interdict. When
confronted in cross-examination on behalf of Pharma with the passages
in the specification referring to non-oral and non-solid
compositions, Prof Davies’ response was that, despite these
references,
‘I never thought the 2002 or the 2004 patent could
be used for anything other than oral administration’. The
direct
evidence on behalf of Bayer was that it only became aware of
the averment that the claims of the 2002 patent were not limited to
solid oral dosage formulations in June 2011, when the issue was
raised in Europe for the first time. In all the circumstances,
I do
not believe that an implied finding of dishonesty in rejecting this
statement, is warranted. For these reasons I find that
the objection
based on culpable delay cannot be sustained.
Reprehensible
conduct
[24]
Pharma’s first charge of reprehensible conduct on the part of
Bayer relies on the allegation that ‘the timing of
the interim
interdict application and the institution of the action displayed
abuse of the procedure of this honourable court’.
I find this
complaint misplaced. Firstly, Bayer was successful in both the
interim interdict and the action proceedings. If its
conduct in those
proceedings indeed amounted to an abuse, that relief would hardly
have been granted. Secondly, if Bayer’s
conduct was in any way
inappropriate in those proceedings, it should have been dealt with
there and then, perhaps by way of a special
costs order. But it has
no bearing on these amendment proceedings.
[25]
Pharma’s second charge under this heading is that Bayer sought
to enforce the 2002 patent in circumstances when it knew
(a) that the
patent was invalid and (b) that, in any event, Pharma’s Ruby
product did not constitute an infringement. I have
already found the
contention resting on Bayer’s alleged knowledge of invalidity
unsustainable. All that needs to be added
in this regard is that
Bayer launched both the interim interdict and the final interdict
proceedings before the allegations of
invalidity came to its notice
in June 2011. Shortly thereafter it withdrew its reliance on the 2002
patent and sought an amendment
to the 2004 patent so as to remove the
offending passages from the specification. With regard to the
allegation that Ruby did not
infringe the 2002 patent because it does
not contain DSP in micronised form, Bayer’s answer is that it
is still not convinced
that this is so. This answer appears to be
supported by the inherent probabilities. If Bayer indeed knew that
the DSP contained
in Ruby is not in micronised form, it would mean
that Bayer embarked on litigation without any hope of success, which
is hardly
likely.
[26]
Finally, Pharma contended that Bayer has abused the patent system in
South Africa by obtaining ‘two patents for the same
invention’.
All I need to say in this regard is that a similar argument was
advanced by Pharma and dismissed by this court
in the previous
litigation between the parties (see
Pharma
Dynamics (Pty) Ltd v Bayer Pharma AG
(468/2013)
[2014] ZASCA 123
(19 September 2014) paras 42-45). For these reasons
I find that the objection based on the reprehensible conduct on the
part of
Bayer, must also fail.
Costs
[27]
What remains are issues of costs. The reason for these issues arising
is the contention by Pharma that, even if the amendment
application
were to be successful, Bayer should be ordered to pay the costs
occasioned by the opposition, at least in the court
a quo. In support
of this contention Pharma argued that Bayer had sought an indulgence
and that the grounds of objection raised
against the application were
‘fair, reasonable and not vexatious’. As authority for
this argument Pharma relied on
the general approach with regard to
matters involving the amendment of pleadings. I do not believe,
however, that the considerations
underlying the approach to
applications for the amendment of pleadings can be transposed without
qualification to the amendment
of patents. Especially where the
amendments are aimed in the main at limiting the claims of the
patent, I believe it to be in the
public interest that a patentee
should not be discouraged through apprehension of an adverse costs
order to seek those amendments.
In addition, Pharma also referred to
decided cases involving amendments of patents where costs were
awarded in favour of the unsuccessful
objector. That is hardly
surprising. The issue of costs is a matter that falls squarely within
the discretion of the court and
one can obviously think of cases
where a costs order to that effect is warranted. But on the facts of
this case, it is not one
that falls within that category. In
consequence, the costs order should, in my view, follow the event,
both in this court and in
the court a quo.
[28]
For these reasons:
1 The appeal is
upheld with costs, including the costs of two counsel.
2 The order of the
Commissioner of Patents is set aside and the following order is
substituted:
‘
(a)
The amendment to South African Patent 2002/1968 applied for by the
applicant is granted.
(b) The respondent
is ordered to pay the applicant’s costs, including the costs of
two counsel.’
_________________
F
D J BRAND
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: P Ginsburg SC, G Marriot
Instructed by:
Adams & Adams
Inc, Pretoria
c/o
Honey Attorneys Inc, Bloemfontein
For
the Respondent: L Bowman SC, B du Plessis
Instructed by:
Von Seidels, Cape
Town
c/o
Webbers, Bloemfontein