[amended by Act 9 of 2002, with effect from the 20th December, 2002.]
(1) An application for the revocation of a patent may be made to the High Court or to
the Tribunal by any person interested, including the State, upon any one or more of
the grounds on which the grant of a patent might have been opposed, but, subject to
the provisions of subsection (2), of proviso (ii) to paragraph (b) of subsection (7) of
section eighty and of paragraph (b) of subsection (1) of section eighty-three, on no
other grounds.
(2) Where an order for the granting of a licence under the patent has been made in
pursuance of an application under section thirty-one, any person interested may, at
any time after the expiration of two years from the date of that order, apply to the
High Court or to the Tribunal for the revocation of the patent upon any of the grounds
specified in subsection (6) of section thirty-one and, if upon such application the High
Court or the Tribunal, as the case may be, is satisfied—
(a)
that any of the said grounds are established; and
(b)
that the purpose for which an order may be made in pursuance of an
application under section thirty-one could not be achieved by the making of any
further order under that section;
it may order the patent to be revoked.
(3) An application for the revocation of a patent shall state the grounds on which the
applicant relies and shall be accompanied by a statement setting out particulars of the
facts alleged in support of the said grounds, and a copy of the application and of the
statement shall be served by the applicant on the patentee and proof of such service
shall be furnished to the registrar of the Tribunal.
(4) If the patentee wishes to contest an application made in terms of subsection (1) or
(2), he shall, within such time as may be prescribed or such further time as the High
Court or the Tribunal, as the case may be, may allow, lodge with the registrar of the
Tribunal a counter-statement setting out particulars of the grounds upon which the
application is contested and deliver to the applicant a copy of that statement.
(5) Except by leave of the High Court or the Tribunal, as the case may be, no
evidence shall be admitted in proof of any ground, particulars of which are not
delivered in terms of subsection (3) or (4).
(6) Particulars delivered in terms of subsection (3) or (4) may from time to time be
amended by leave of the High Court or the Tribunal, as the case may be.
(7) The High Court or the Tribunal, as the case may be, shall appoint a time for the
hearing of an application in terms of subsection (1) or (2), and shall thereafter decide
whether the patent shall be revoked or whether and, if so, subject to what
amendments, if any, of the specification or claims thereof, the patent shall be upheld:
Provided that the High Court or the Tribunal, as the case may be—
(a)
shall not allow any amendment of the specification or claims of the
patent if it is established to its satisfaction that the original complete specification and
claims were not framed in good faith and with reasonable skill and knowledge; and
(b)
may, in the exercise of its discretion as to costs, take into
consideration the conduct of the patentee in framing his original specification and
claims and permitting them to remain as so framed.
(8) An order for the revocation of a patent under this section may be made so as to
take effect either unconditionally or in the event of failure to comply, within such
reasonable period as may be specified in the order, with such conditions as may be
imposed by the order with a view to achieving the purposes for which an order may
be made in pursuance of an application under section thirty-one, and the High Court
or the Tribunal, as the case may be, may, on reasonable cause shown in any case, by
subsequent order extend any period so specified.
(9) The registrar of the Tribunal shall inform the Registrar of any application or
counter-statement which is lodged with him in terms of this section and of any
amendment of particulars which is permitted in terms of subsection (6).
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Consequences of revocation on grounds of fraud