SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
items and documents believed to be involved in the infringement of a plant breeders’ right. 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property With patents and registered designs, any per- son may apply for the revocation of a patent or registered design at any time. The grounds for such revocation are discussed more fully in the following. Compulsory licences for patents and registered design are possible upon application by an interested person if the patent or design is being abused. Declarations of non-infringement are also possible. 2.3 Courts With Jurisdiction South Africa has a hierarchal court structure generally represented, in order of increasing authority, by the Magistrate’s Court, High Court, Supreme Court of Appeal (SCA) and finally the Constitutional Court (CC). Depending on the nature of the relief sought, the High Court may hear the matter in the first instance. In extreme cases, the CC may be approached directly, although this is rare and often refused. Cer- tain courts have jurisdiction in the first instance depending on the type of intellectual property, as discussed in the following. • Patents: The Court of the Commissioner of Patents (CCP) has jurisdiction in the first instance. A non-specialised judge of the High Court is appointed as the commissioner. Appeals may be heard in the SCA followed by the CC. Criminal proceedings related to pat- ent matters may follow the hierarchal struc- ture referred to in the foregoing. • Registered designs: The High Court has jurisdiction in the first instance for any mat- ter related to registered designs, after which the hierarchy described in the foregoing is followed.
• Plant breeders’ rights: Matters are heard in the first instance before the registrar, followed by the appeal board. Thereafter, the High Court and subsequent hierarchy are applica- ble. • Copyright: The jurisdiction follows the stand- ard hierarchy referred to in the foregoing. Infringement proceedings are often initiated in the High Court with applicable jurisdic- tion, and the Copyright Tribunal may be approached first to decide licensing disputes. 2.4 Specialised Bodies/Organisations for the Resolution of Disputes There are certain specialised bodies that may resolve different types of intellectual property rights; these include the Intellectual Property Arbitration Centre of South Africa, which may resolve all intellectual property disputes, the Plant Breeders’ Rights Board – dedicated to hearing disputes relating to plant breeders’ rights – and the Copyright Tribunal, which hears licensing disputes. 2.5 Prerequisites to Filing a Lawsuit There are some prerequisites to filing a lawsuit involving the different intellectual property rights. Concerning patents, there is a nine-month moratorium after the grant of the patent before infringement proceedings may be instituted. Fur- thermore, when filing, the patent number must be recorded as the case number. Additionally, there are restrictions on the recovery of dam- ages if an infringer has not been made aware of the existence of the patent and its number. The mere statement that an invention is protected by patent is insufficient; the number must be stated. Joint owners of a patent are required to be in agreement before any proceedings may be initiated, and the owner of a patent is required to notify licensees before proceedings are initi- ated. Finally, a licensee is required to wait for two
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