SOUTH AFRICA Law and Practice Contributed by: Russell Bagnall, Danie Dohmen, Sophia Smallbones and Ramon Pereira, Adams & Adams Attorneys
1.9 Declaratory Relief A declaration of non-infringement is possible. The declaration may be sought by any person and requires that the applicant furnish the full particulars of the alleged infringement to the pat - entee with a request for the declaration which, if refused, permits the applicant to apply to court. 1.10 Doctrine of Equivalents South African (SA) courts adopt a purposive or contextual approach to the interpretation of claims. Within the framework of this approach, SA courts do apply a form of the doctrine of equivalents. In particular, the courts will deter - mine whether a feature is essential or not. The considerations are broadly as follows. • To ascertain what are and what are not the essential features or integers of a claimed invention, the specification must be read and interpreted purposively or realistically, with the understanding of persons with practi - cal knowledge and experience of the kind of work for which the invention was intended to be used and in the light of what was generally known by such persons at the date. • The fact that a particular feature is present in the claim does not alone suffice to make that feature an essential one, otherwise the problem would not arise. • In general, if the feature is in fact essential to the working of the claimed invention, then it must be regarded as an essential feature. On the other hand, a patentee may indicate in his/her specification, either expressly or by implication, that he/she regards a particular integer as essential; and in that event it must be treated as essential, and it does not matter that it may not be essential to the working of the invention. However, where a feature is not essential to the working of the invention and the patentee has not indicated that he/
she regards it as an essential integer, then, in general, it may be treated as unessential. 1.11 Clearing the Way There is no obligation to clear the way before launching a product. However, a failure to do so is an issue that is relevant during preliminary injunction proceedings in weighing up the bal - ance of convenience if the generic product is Parties routinely rely on expert witnesses to advance their case on validity and infringement. In preliminary injunction proceedings, the evi - dence takes the form of declaration evidence. In trial proceedings, the party wishing to adduce expert evidence is required to indicate an inten - tion to do so and must provide a summary of the opinion and its reasons for the opinion in an expert summary. The expert witnesses provide oral testimony and are subject to cross exami - nation. There is no limit to the amount of evidence that may be adduced. launched at risk. 1.12 Experts Parties appoint their own expert witnesses and there is no court-appointed expert, technical or scientific adviser. However, the expert has a duty to assist the court in its findings by providing independent and objective views. Multiple experts are often required, for example, where the notional skilled addressee is a multi- disciplinary team. As mentioned, in preliminary injunction proceed - ings the evidence takes the form of declaration evidence.
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