SOUTH AFRICA Law and Practice Contributed by: Russell Bagnall, Danie Dohmen, Sophia Smallbones and Ramon Pereira, Adams & Adams Attorneys
9. Alternative Dispute Resolution 9.1 ADR Options Arbitration proceedings may be used but they are not relied on in South Africa.
If an injunction decision is overturned on appeal or the patent is revoked, the preliminary injunc - tion would most likely be extinguished. 7.2 Appeal Court(s) Arbiter Patent appeals are most frequently heard in the Supreme Court of Appeal, the highest court on non-constitutional matters. The quorum is five non-specialist judges. 7.3 Special Provisions There are certain specific procedures prescribed in the Patents Act. For example, patent revoca - tion proceedings are brought on a specific form, with prescribed timelines for the exchange of pleadings and declaration evidence. Specific procedures also apply to oppositions to applica - tions for post-grant amendments of patents and to oppositions to applications to restore lapsed patents. Where specific provision is not made for procedure in the Patents Act or Regulations, the Superior Courts Act and Uniform Rules of Court govern proceedings in the Court of the Com - missioner of Patents. Therefore, proceedings for infringement follow the ordinary high court procedural rules.
10. Settlement/Antitrust 10.1 Considerations and Scrutiny
The pharma/biopharma industry has come under recent scrutiny by the Competition Commission where issues such as anti-competitive pricing, abuse of dominance and denying access to an essential facility, and the like, have been con - sidered. The disputes are often settled with the Commission (on pricing-related issues) before a referral to the Competition Tribunal takes place. Settlement agreements are usually made confi - dential between the parties. South Africa has a well-developed class actions regime that is framed by common law principles and recent case law. Class action litigation in principle can be brought in relation to allegedly defective medicines or medical devices. The common law of negligence would usually apply. In addition, the Consumer Protection Act (2008) makes provision for potential liability of any supplier involved in product supply chain and, in specific instances, provides for strict liability (Section 61). Both class actions and strict liability statutory claims are fast developing areas of the law and whilst claims in the life sciences/pharma sector are possible, they are not yet common. 11. Collective Redress 11.1 Group Claims
8. Other Relevant Forums/ Procedures 8.1 The UPC or Other Forums
Procedures are available for custom searching and seizing of counterfeit goods and suspected trade mark infringement. However, there are no customs-related procedures especially applica - ble to patent infringement.
317 CHAMBERS.COM
Powered by FlippingBook