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[2014] ZAGPPHC 204
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Mantella Trading 310 (Pty) Ltd v Kusile Mining (Pty) Ltd (1998/7391) [2014] ZAGPPHC 204 (21 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE COURT OF
THE COMMISSIONER OF PATENTS
Patent
Case No: 1998/7391
DATE:
21 FEBRUARY 2014
In the matter
between
MANTELLA TRADING
310 (PTY) LTD
............................
Applicant
And
KUSILE MINING
(PTY) LTD
.........................................
Respondent
JUDGMENT
- Leave to Appeal
MAKGOKA, J:
[1 ] This is an
application for leave to appeal against a part of the judgment of
this court and its consequential order, made on
17 December 2013, in
terms of which the plaintiffs patent infringement action against the
defendant was dismissed, and the defendant’s
counterclaim for
revocation of the plaintiffs South African Patent No. 1998/7391 was
granted. The application is opposed by the
defendant.
[2] The test
applicable whether or not to grant leave to appeal, is trite and well
settled. It is whether there are reasonable prospects
that another
court, given the same set of facts, might arrive to a different
conclusion. This common law test has now been codified
in
s 17
of the
Superior Courts Act, 10 of 2013
.
[3] Having had
careful and detached regard to the judgment, the notice of
application for leave to appeal, as well as the oral arguments,
I am
satisfied that indeed there are reasonable prospects that another
court might come to a different conclusion. I am therefore
inclined
to grant leave to appeal.
[4] As to the forum
to which the appeal should lie, counsel are ad idem that the Supreme
Court of Appeal should be seized of the
matter. 1 agree. Matters such
as the present, always involve difficult questions of interpretation
and the law. I am therefore
satisfied that the matter warrants the
attention of the Supreme Court of Appeal.
[5] In the result
the following order is made:
1. The applicant
(plaintiff) is granted leave to appeal to the Supreme Court of
Appeal;
2. The costs of this
application are costs in the appeal.
TIVFMAKGOKA
JUDGE OF THE HIGH
COURT AND COMMISSIONER OF PATENTS