SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
The grounds for cancellation of a plant breeders’ right are as follows: • any information submitted to the registrar in the application for such a right, or in connec- tion with such an application, was incorrect, and such a right would not have been granted if the registrar had known that the information was incorrect; • information has come to light that, if discov- ered earlier, would have resulted in the plant breeders’ right being refused; • priority should be given to any other conven- tion country application for the grant of a plant breeders’ right for the same variety; • the holder of the plant breeders’ right refuses, has failed or is not in a position to furnish the registrar with propagating material of the relevant variety; • the holder of the plant breeders’ right has failed to comply with any request from the registrar concerning the facilities maintain- ing the variety, or has prevented the registrar from undertaking an inspection; • the holder of the plant breeders’ right refuses, has failed or is not in a position to submit a proposal for an alteration or a supplemen- tation of a denomination after having been requested to do so; • the annual fee was not paid within the period referred to; • the plant breeders’ right has been granted to a person who is not entitled thereto (an applicable ground unless it is transferred to the person who is entitled thereto); or • the holder of the plant breeders’ right is ordered to terminate the plant breeders’ right by an order of court. Any person may apply for the revocation of a patent or registered design at any time, and an
interested party may apply to the registrar to cancel the plant breeders’ right. 4.2 Partial Revocation/Cancellation Partial revocation of a patent is possible through the finding that certain claims of the specification are invalid. This finding usually occurs through a determination made by the commissioner of patents after revocation proceedings have been instituted. Invalid claims may be excised through amendment. 4.3 Amendments in Revocation/ Cancellation Proceedings Amendment of specifications during revocation proceedings is possible. The usual process for amendment during revocation proceedings is to bring an application therefor through motion pro- ceedings. The commissioner has wide discretion to deal with the application as they see fit. 4.4 Revocation/Cancellation and Infringement Revocation proceedings for patents and regis- tered designs are heard first before infringement findings; these proceedings are usually separat- ed but can be heard sequentially. 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights The procedures of the CCP are regulated in terms of the Patent Act and its regulations – spe- cifically infringement and revocation procedures. If no specific procedures are outlined in the Act or regulations, the procedure is that of the High Court. The timelines for revocation proceedings are extensively prescribed by the regulations as follows:
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