(1) If a person who has instituted or intends instituting an action for infringement of a
patent satisfies the Court that, prima facie—
(a)
he has a cause of action against another person which he intends to
pursue; and
(b)
the other person has in his possession documents or other things of
whatsoever nature which constitute evidence of great importance in substantiation of
that cause of action; and
(c)
there is a real and well-founded apprehension that the documents or
other things may be hidden, destroyed or rendered inaccessible before discovery can
be made in the usual way;
the Court may make such order, commonly known as Anton Piller order, as it
considers necessary or appropriate to secure the preservation of the documents or
things as evidence.
(2) An order in terms of subsection (1) may be granted without notice to the person
who is allegedly in possession of the documents or other things to which the order
relates, and the Court may sit in camera for the purpose of hearing an application for
such an order:
Provided that the Court shall not grant an order without such notice unless it is
satisfied that there is a real possibility that the documents or things will be hidden,
destroyed or rendered inaccessible if notice is given.
(3) An order in terms of subsection (1) may be granted on such conditions, including
the giving of security by the applicant, as the Court may fix.
(4) This section shall not be taken to limit any power the Court may have under its
ordinary jurisdiction to grant orders such as are referred to in this section.
[inserted by Act 9 of 2002, with effect from the 20th December, 2002.]
49
Relief for infringement of partially valid specification
(1) Where, in any action for the infringement of a patent, the High Court finds that
any claim in the specification in respect of which the infringement is alleged is valid,
but that any other claim thereunder is invalid, then, notwithstanding the provisions of
section forty-eight, the following provisions shall apply—
(a)
unless the High Court is satisfied that the invalid claim was not
framed in good faith and with reasonable skill and knowledge, the High Court shall,
subject to its discretion as to costs and as to the date from which damages should be
reckoned and to such terms as to amendment of the specification as it may deem
desirable, grant relief in respect of any valid claim which is or has been infringed,
without regard to the validity of any other claim in the specification, and in exercising
such discretion the High Court may take into consideration the conduct of the
patentee in inserting the invalid claim in the specification or permitting that claim to
remain there;
(b)
if the High Court is satisfied that the invalid claim was not framed in
good faith and with reasonable skill and knowledge, the High Court shall not grant
any relief by way of damages or costs, but may grant such other relief in respect of
any valid claim which is or has been infringed as to it seems just and may impose
such terms as to amendment of the specification as a condition of granting any such
relief as it may deem desirable;
(c)
if a counter-claim for revocation of the patent has been made in the
action on the ground of invalidity of any claim in the specification, the High Court
may postpone the operation of any order made thereon for such time as may be
requisite to enable the patentee to effect any amendment of the specification pursuant
to terms imposed by the High Court and may attach such other conditions to any
order to be made on the counter-claim as the High Court may deem desirable.
50
Restrictions on recovery of damages for infringement
(1) Where—
(a)
there has been a change of ownership of a patent, whether by virtue of
assignment, transmission or operation of law; or