SOUTH AFRICA Law and Practice Contributed by: Russell Bagnall, Danie Dohmen, Sophia Smallbones and Ramon Pereira, Adams & Adams Attorneys
are not usually encountered. However, a stay could be ordered if there is an issue before the Court of the Commissioner of Patents or a higher court, that would be determinative of the issues and would render the proceedings moot until that issue is decided. 1.17 Patent Amendment South Africa is a non-examining jurisdiction. The Registrar of Patents does not conduct substan - tive examination. Therefore, there is an onus on an applicant or patentee to make validating amendments to the claims on becoming aware of relevant prior art. It is permissible to apply to court for amendment during infringement proceedings. The court will likely stay the infringement proceedings pending a determination of the amendment application. The amendment will be advertised for a two- month opposition period. Filing multiple auxil - iary requests would be very unusual. A patentee would need to elect which amendment it wishes to make. 1.18 Court Arbiter The court of first instance in patent matters is the Court of the Commissioner of Patents. Although the court is named as a specialist court, it is, in practice, convened by a High Court judge (with - out a jury) who may not have patent experience. Since the Court of the Commissioner of Patents has nationwide jurisdiction, there is no forum shopping.
type provision. Therefore, any acts associated with obtaining an MA or the possession of an MA are not considered acts of infringement. To show a reasonable apprehension of infringement, post MA registration reliance is often placed on num - ber of surrounding circumstances, including pre- launch activities, a pricing approval request and/ or obtaining a reimbursement code for medical insurance. The private market sector is often the most relevant market where tender supply does not apply. However, a submission of a tender would be relevant to the public sector and would amount to “offering to dispose of” which is an act of infringement. Tender submissions would typically not be accessible but could be obtained by way of SA access to information legislation (subject to a trade secret defence) or could be obtained by way of discovery in trial proceed - ings. There has been no skinny labelling litigation in South Africa. However, it is well settled law that contributory infringement is actionable (for example, by way of inducement). An originator product that has been put on the market by the patentee or with the consent of the patentee in another jurisdiction (free of restrictions) is subject to the exhaustion of rights defence in South Africa. Therefore, if a licensee supplies a product in another country under a territorially limited agreement, the importation of that product into South Africa may result in an infringement. Importation is a specified act of infringement in South Africa. The Minister of Health is empowered by Section 15C of the Medicines and Related Substances Control Act to prescribe the conditions on which any pat - ented medicine may be parallel imported into South Africa regardless of the provisions of the Patents Act. This is seldom invoked.
2. Generic Market Entry 2.1 Infringing Acts
The patentee must show a reasonable apprehen - sion of infringement. South Africa has a bolar-
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