SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
• a person will lodge and serve an application for revocation, and the patent owner will have two months (extendable by agreement or request to registrar) in which to file a counter- statement (plea); • if a counterstatement is not lodged within two months, the patent is deemed to be revoked; • within two months of filing the counterstate- ment, the applicant must file and serve his or her evidence in the form of an affidavit; • within two months of the applicant filling the evidence affidavit, the patentee may file and serve an answering evidence affidavit; • within two months of the patentee filing the answering evidence affidavit, the applicant may file and serve replying evidence, where- upon no further evidence shall be filed except with leave; and • on completion of filing, the applicant may request a hearing date or, if he fails to do so within six weeks, the patentee may request a hearing date. Similarly, the Designs Act and its regulations pre- scribe the process and timelines in detail. There is typically a single trial hearing per issue, such as revocation and infringement issues, although these may be heard together. In application pro- ceedings, for example an interim interdict, the experts do not testify in person, their evidence is in the form of an affidavit or sworn statement and the matter is heard on paper. In action proceed- ings, such as for a final interdict and damages, and also in the case of revocation proceedings (a hybrid between application and action proceed- ings where the expert testimony is in the form of an affidavit but may refer to oral evidence), the expert witness gives oral evidence and may be cross-examined. Typically, the determination of damages will be separated out from the main hearing and deter-
mined at a later stage after infringement has been established. 5.2 Decision-Makers Cases are determined by legal judges, but in the case of plant breeders’ rights, the registrar may appoint a panel containing technical and legal experts. 5.3 Settling the Case The parties can at any stage prior to judgment settle the matter or engage in mediation. The judge may also direct the parties to consider mediation at any stage before judgment. 5.4 Other Court Proceedings In South African law, interlocutory applications have the effect of staying the main matter from being heard. Additionally, with patents and designs, the infringement and revocation pro- ceedings may be heard together, typically with revocation proceedings being determined first. Interim (provisional) damages are focused on personal injury claims and, in general, punitive damages are not recoverable under South Afri- can patent law. However, there is (although it is extremely unlikely) the possibility of constitution- al damages in general and additional damages in cases of flagrant infringement of copyright, which can be seen as punitive. Litigation costs may be awarded, in order of increasing value, for a no costs order, on a party- party scale, on an attorney-client scale and as an order of costs de bonis propriis (which is a sanction punishing the attorney for “despicable behaviour”). Costs may be taxed at the applica- 6. Remedies 6.1 Remedies for the Patentee
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