Patents—South Africa—Q&A guide

The following IP practice note provides comprehensive and up to date legal information covering:

  • Patents—South Africa—Q&A guide
  • 1. What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?
  • 2. What is the format of a patent infringement trial?
  • 3. What are the burdens of proof for establishing infringement, invalidity and unenforceability of a patent?
  • 4. Who may sue for patent infringement? Under what conditions can an accused infringer bring a lawsuit to obtain a judicial ruling or declaration on the accusation?
  • 5. To what extent can someone be liable for inducing or contributing to patent infringement? Can multiple parties be jointly liable for infringement if each practises only some of the elements of a patent claim, but together they practise all the elements?
  • 6. Can multiple parties be joined as defendants in the same lawsuit? If so, what are the requirements? Must all of the defendants be accused of infringing all of the same patents?
  • 7. To what extent can activities that take place outside the jurisdiction support a charge of patent infringement?
  • 8. To what extent can ‘equivalents’ of the claimed subject matter be shown to infringe?
  • 9. What mechanisms are available for obtaining evidence from an opponent, from third parties or from outside the country for proving infringement, damages or invalidity?
  • More...

Patents—South Africa—Q&A guide

This Practice Note contains a jurisdiction-specific Q&A guide to patents in South Africa published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021).

Authors: Spoor & Fisher—Marco Vatta; Herman van Schalkwyk

1. What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?

South African patent law is governed by the Patents Act 57 of 1978 (the Patents Act). The Patents Act makes provision for infringement proceedings, which are held before the Court of the Commissioner of Patents, a specialist court of the Gauteng Division of the High Court of South Africa, Pretoria. No provision is made for any other form of legal or administrative proceedings for enforcing patent rights, and only the Court of the Commissioner of Patents has jurisdiction as court of first instance to hear patent enforcement matters.

2. What is the format of a patent infringement trial?

Patent enforcement proceedings may be brought in two ways, by motion proceedings and action proceedings. In motion proceedings, the evidence is contained in affidavits and, in the ordinary course of proceedings, no oral evidence is heard. The matter may, however, be referred to oral evidence where there is a dispute of fact.

The common approach for patent enforcement is by way

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