SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings In the case of patents and designs, an appeal is possible from the CCP to a full bench of the High Court, or directly to the SCA, and a further appeal to the CC is possible. In the case of plant breeders’ rights, a decision of the registrar may be appealed to the appeal board, and then to the High Court followed by a full bench of the High Court, or directly to the SCA. Further appeal to the CC is possible. 7.2 Type of Review An appeal will review the facts of the case as forming part of the record. Usually, no facts out- side the record are considered. The cost before filing a lawsuit typically involves an opinion on the validity and/or infringement, which would be based on a prior art search and interpretation of claims, and an interpretation of the infringing items. Following that, letters of demand are usually sent before the preparation and filing of the lawsuit. 8.2 Calculation of Court Fees There are no court fees as such, and the fees are calculated based on the professional hourly fees of the patent attorney and advocate (ie, solicitors and barristers) and the hourly fee of the expert witnesses. 8.3 Responsibility for Paying the Costs of Litigation There are no court fees as such. The party who is not successful in instituting the defending court 8. Costs 8.1 Costs Before Filing a Lawsuit
ble court rate, and the taxing master may allow special rates for exceptionally complex techni- cal matters. Regardless, the typical recovered costs are around one-third of the actual litigation costs. If a party disregards an order of court, they will be in contempt of court, which is a crime and enforceable as such. A party may make an appli- cation to the court or an alternative order enforc- ing the outcome. 6.2 Rights of Prevailing Defendants With patents and registered designs, there is, in addition to costs, a remedy against ground- less threats of infringement, which includes a declaratory order, an interdict and the ability to recover damages arising from the baseless threat of infringement. 6.3 Types of Remedies Apart from the remedies mentioned in the fore- going, criminal sanctions are possible with copy- right infringement, and the new Plant Breeders’ Rights Act introduces criminal sanctions for infringement. 6.4 Injunctions Pending Appeal The usual practice is to apply for an interim inter- dict by way of motion proceedings, pending an action for final interdict and damages/reason- able royalty. Conventionally, an interim interdict is not appealable as it is not final in effect, but recently it has been found that if an interim inter- dict has a final effect in practice, an appeal may be allowed. If a final interdict is granted by way of an action, a subsequent appeal will suspend the working of the interdict pending the final out- come of the appeal.
445 CHAMBERS.COM
Powered by FlippingBook