[inserted by Act 9 of 2002, with effect from the 20th December, 2002.]
(2) Subject to any rules of court, the following provisions shall apply in connection
with an action for infringement.[amended by Act 9 of 2002, with effect from the 20th December, 2002.]
(a)
any ground upon which a patent may be revoked under this Act may
be relied upon by way of defence;
(b)
the defendant may, by way of counter-claim in the action, apply for
the revocation of the patent;
(c)
the plaintiff shall, with his statement of claim or declaration or on the
order of the High Court at any subsequent time, deliver full particulars of the
infringement complained of;
(d)
the defendant shall, with his statement of defence or plea or on the
order of the High Court at any subsequent time, deliver particulars of any objections
on which he relies in support thereof;
(e)
at the hearing no evidence shall, except by leave of the High Court, be
admitted of any infringement or on any objections of which particulars have not been
so delivered in terms of paragraph (c) or (d);
(f)
the High Court may allow the patentee to amend his specification,
subject to such terms as to costs, advertisement or otherwise as it may impose and to
the provisions of subsection (3) of section thirty-seven.
(3) In any action under this section where an exclusive licensee is the plaintiff, the
patentee shall, unless he is joined as plaintiff in such action, be added as defendant:
Provided that a patentee so added as defendant shall not be liable for any costs unless
he enters an appearance and takes part in the proceedings.
(4) If the patentee is the plaintiff in any action under this section, he shall give notice
thereof to the exclusive licensee under the patent in question and any such licensee
shall be entitled to intervene as a co-plaintiff and to recover any damages he may
have suffered as a result of the infringement.
(5) No action under this section shall lie in respect of an infringement which took
place before the publication referred to in subsection (2) of section sixteen.
(6) No action for infringement of a patent may be instituted more than three years
after the date on which that patent has expired or lapsed.
(7) In an action for infringement of a patent the plaintiff shall be entitled to relief by
way of interdict and damages and the High Court may, on application, make such
order for an interdict, damages, inspection or account and impose such terms and give
such directions as it may deem fit:
Provided that in awarding damages the High Court shall take into account any
dilatory conduct on the part of the patentee or plaintiff in making the infringer aware
of the patent.
(8) In an action for infringement of a patent in respect of an invention which relates to
the protection of a new substance, any substance of the same chemical composition
and constitution shall, in the absence of proof to the contrary, be deemed to have been
produced by the patented process.
(9) If it is proved, in an action for infringement of a patent in respect of an invention
which relates to the protection of an art or a process, that—
(a)
the defendant produced a product that is identical to that produced
from the patented art or process; and
(b)
the patented art or process is new;
it shall be presumed, in the absence of proof to the contrary, that the defendant’s
article was produced from the patented art or process:
Provided that, in adducing proof to the contrary, the legitimate interests of the
defendant in protecting his manufacturing and business secrets shall be taken into
account.
[inserted by Act 9 of 2002, with effect from the 20th December, 2002.]
48A Anton Piller orders