Patent Litigation

Intellectual Property
Home / South Africa / Patent Litigation

When a patent is infringed, the patentee has various options to consider including litigation. Litigation is an action brought in court to enforce a particular right and involves a series of steps that may lead to a court trial and ultimately the resolution of the matter. Different strategies may be implemented when instituting proceedings, which will depend on each case. Typically, in a case of infringement, the patentee will claim loss as a result of the infringement and may request relief in the form of delivery up of any products/articles which infringe the patent, an interdict to prevent the continuation of infringement and damages. The defendant may oppose the action by denying the allegation of infringement. The defendant may also make a counterclaim for the revocation of the patent and, by way of defence, rely on any ground on which the patent may be revoked. If a ground of invalidity is used as a defence, the patentee may be given an opportunity to amend the patent. During this time, the infringement proceedings may be stayed until after the amendment has been allowed or rejected. If the amendment is allowed, the infringement proceedings will proceed with reference to the amended claims.

Patent Infringement

Any person who makes, uses, exercises, disposes, offers to dispose of or imports the invention without having received authorisation from the patentee will be guilty of infringement. A person who does not commit an act of infringement but enables / assists / aids / abets another person to infringe the patent, will be guilty of contributory infringement. Permission to perform these acts may be obtained through a license agreement with the patentee.

Patent Search

It is very important for applicants to search for similar inventions before applying for a patent. A patent search will indicate whether your idea has been patented before. Although novelty can never be determined conclusively, an indication of the novelty of your invention may be found by conducting patent and literature searches on the internet. Patent attorneys may conduct a search for your Invention.