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PATENT AND OTHER IP INFRINGEMENT IN SOUTH AFRICA: WHEN CAN YOU THREATEN LEGAL ACTION?Article title

One day, searching the internet for similar products, you find that someone is potentially copying your product. What do you do? First, stop and breathe – before you threaten the manufacturer, wholesaler, retailer, etc., with patent infringement.

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PATENT AND OTHER IP INFRINGEMENT IN SOUTH AFRICA: WHEN CAN YOU THREATEN LEGAL ACTION?Article title

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  1. PATENT AND OTHER IP INFRINGEMENT IN SOUTH AFRICA: WHEN CAN YOU THREATEN LEGAL ACTION?Article title So let’s say you’ve spent hundreds of thousands on Research and Development for a new invention – not to mention design, branding, or re-branding exercises to create a trade mark/Ss. Or let’s say you have copyright in certain works you’ve created, jumping through all of the relevant hoops required to protect and register them. One day, searching the internet for similar products, you find that someone is potentially copying your product. What do you do? First, stop and breathe – before you threaten the manufacturer, wholesaler, retailer, etc., with patent infringement. You should know that Section 70 of the South African Patents Act 57 of 1978 states the following:

  2. ‘70 Remedy for groundless threats of infringement proceedings 1. proceedings for infringement of a patent, a person aggrieved thereby may, whether the person making the threats is or is not entitled to or interested in a patent, or an application for a patent, institute proceedings against him and obtain a declaration to the effect that such threats are unjustifiable and an interdict against the continuance of such threats, and may recover such damages, if any, as he has sustained thereby, unless the person making the threats proves that the acts in respect of which the proceedings are threatened, constitute or, if done, would constitute an infringement of a patent in respect of a claim in the specification which is not shown by the plaintiff to be invalid: Provided that a circular, advertisement or communication addressed to any person, which comprises only a notification of the existence of a particular patent upon which the proprietor relies for protecting his interests shall not, by itself, be deemed to be a threat of proceedings for infringement. Where any person, by circular, advertisement or otherwise, threatens any other person with 2. relief to which he would be entitled in separate proceedings in respect of any infringement by the plaintiff of the patent to which the threats relate.’ The defendant in any such proceedings may apply by way of counterclaim in the proceedings for any This provision serves to prevent patent owners from abusing a) their position in the market and b) the legislation that establishes their rights (Patents Act), even though they may not technically have a case.

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