Chapter V
Application for Patents
Patentable inventions
Sec. 25.-(2)
Anything which consists of-
(a) a discovery;
(b) a scientific theory;
(c) a mathematical method;
(d) a literary , dramatic, musical or artistic work or any other aesthetic creation;
(e) a scheme, rule or method for performing a mental act, playing a game or doing business;
(f) a program for a computer; or
(g) the presentation of information,
shall not be an invention for the purposes of this Act.
(3) The provisions of subsection (2) shall prevent, only to the extent to which a patent or an application for a patent relates to that thing as such, anything from being treated as an invention for the purposes of this Act.
(4) A patent shall not be granted-
(a) for an invention the publication or exploitation of which would be generally expected to encourage offensive or immoral behaviour; or
(b) for any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process.
Licences of right
Compulsory licences in respect of dependent patents
Sec. 55. Where the working of a patent (hereinafter referred to as a dependent patent) without infringement of a prior patent is dependent upon the obtaining of a licence under that prior patent, the proprietor of the dependent patent may, if agreement cannot be reached as to such licence with the proprietor of the prior patent, apply to the commissioner for a licence under the prior patent, and the commissioner may grant such a licence on such conditions as he may impose, but including a condition that such licence shall be used only for the purpose of permitting the dependent patent to be worked and for no other purpose.
Compulsory licence in case of abuse of patent rights
Sec. 56.- (1) Any interested person who can show that the rights in a patent are being abused may apply to the registrar in the prescribed manner for a compulsory licence under the patent.
(lA) Pending the final determination of an application for a compulsory licence the applicant shall not, except under special circumstances, be prohibited by interdict from infringing the patent.
[Sub-s. (lA) inserted by s. 2(a) of Act No.76 of 1988.]
(2) The rights in a patent shall be deemed to be abused if-
(a) the patented invention is not being worked in the Republic on a commercial scale or to an adequate extent, after the expiry of a period of four years subsequent to the date of the application for the patent or three years subsequent to the date on which that patent was sealed, whichever period last expires, and there is in the opinion of the commissioner no satisfactory reason for such nonworking;
(b) the working of the invention in the Republic on a commercial scale or to an adequate extent is being prevented or hindered by the importation of the patented article;
(c) the demand for the patented article in the Republic is not being met to an adequate extent and on reasonable terms;
(d) by reason of the refusal of the patentee to grant a licence or licences upon reasonable terms, the trade or industry or agriculture of the Republic or the trade of any person or class of persons trading in the Republic, or the establishment of any new trade or industry in the Republic, is being prejudiced, and it is in the public interest that a licence or licences should be granted; or
(e) the demand in the Republic for the patented article is being met by importation and the price charged by the patentee, his licensee or agent for the patented article is excessive in relation to the price charged therefor in countries where the patented article is manufactured by or under licence from the patentee or his predecessor or successor in title.
(3) The patentee or any other person appearing from the register to be interested in the patent may in the prescribed manner oppose the application.
(4)(a) The commissioner may order the grant to the applicant of a licence on such conditions as he may deem fit, including a condition precluding the licensee from importing into the Republic any patented articles.
(b) If the commissioner is of the opinion that an order directing the grant of a licence is not justified, he may refuse the application.
(5) If the only abuse found by the commissioner to have been established is that set out in subsection (2)(a), any licence granted shall be non-exclusive but shall not be transferable except to a person to whom the business or the part of the business in connection with which the rights under the licence were exercised has been transferred.
(6) In all other cases the commissioner may grant an exclusive licence if, having regard to all the circumstances of the case, he considers it justified, and for that purpose he may revoke any existing licence on such conditions as he may deem fit.
(7) In determining the conditions on which any licence. is granted the commissioner shall have regard to any relevant facts, including the risks to be undertaken by the licensee, the research and development undertaken by the patentee and the terms and conditions usually stipulated in licence agreements in respect of the subject-matter of the invention, between persons who voluntarily enter into such agreements.
(7A) The commissioner may order that a licence granted in terms of this section shall be deemed to have been granted on the date on which the application has been received by the registrar.
[Sub-s. (7A) inserted by s. 2(b) of Act No.76 of 1988.]
(8) Any order of the commissioner under this section shall be made with a view to avoiding the abuse found by the commissioner to have been established.
(9) The commissioner may amend or revoke any licence granted under this section.
(10) Subject to the provisions of subsection (11) and to the conditions that may be attached to the licence, a licensee under this section shall have the same rights and obligations as any other licensee under a patent.
(11) An exclusive licensee under this section may, subject to the conditions attached to the licence, institute any proceedings which may be necessary to prevent infringement and to recover damages as a result of infringement, of the patent in question, as if he were the patentee: Provided that-
(a) the patentee concerned shall be cited as a party to such proceedings;
(b) the patentee may join in the proceedings either as co-plaintiff or as co-defendant; and
(c) the patentee shall not be liable for any costs in connection with such proceedings unless he enters an appearance and takes part in those proceedings.
(12) Notwithstanding the provisions of subsection (11), a patentee whose patent is the subject of an exclusive licence in terms of this section may institute any proceedings which may be necessary to prevent infringement and to recover damages as a result of infringement, of the patent in question: Provided that-
(a) the exclusive licensee shall be cited as a party to such proceedings;
(b) the exclusive licencee may join in the proceedings either as co-plaintiff or as co-defendant; and
(c) the exclusive licensee shall not be liable for any costs in connection with such proceedings unless he enters an appearance and takes part in those proceedings.
(13)(a) The commissioner may, when ordering the grant of a licence under subsection (4)(a), award costs against the applicant or patentee concerned or any person opposing the relevant application.
(b) In so awarding costs, the commissioner shall inter alia have regard to-
(i) the nature and extent of the abuse found by him to have been established; and
(ii) whether the application for a licence under this section might have been avoided by the grant, by the patentee concerned to the applicant, of a voluntary licence on reasonable terms.
(14) For the purposes of this section the expression "patented article" includes any composition of matter or any product of a patented process or method or any product produced by a patented machine.
Chapter XIVAcquisition of invention or patent by State
Sec. 78. The Minister may, on behalf of the State, acquire, on such terms and conditions as may be agreed upon, any invention or patent.