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Patents Act, 1978 (Act No. 57 of 1978)

Chapter X : Revocating of patents

61. Grounds for application for revocation of patent

 

 

(1) Any person may at any time apply in the prescribed manner for the revocation of a patent on any of the following grounds only, namely—
(a) that the patentee is not a person entitled under section 27 to apply for the patent;
(b) that the grant of the patent is in fraud of the rights of the applicant or of any person under or through whom he claims;
(c) that the invention concerned is not patentable under section 25;
(d) that the invention as illustrated or exemplified in the complete specification concerned cannot be performed or does not lead to results and advantages set out in the complete specification;
(e) that the complete specification concerned does not sufficiently describe, ascertain and, where necessary, illustrate or exemplify the invention and the manner in which it is to be performed in order to enable the invention to be carried out by a person skilled in the art of such invention;

[Paragraph (e) substituted by section 12 of Act No. 58 of 2002.]

(f) that the claims of the complete specification concerned are not—
(i) clear; or
(ii) fairly based on the matter disclosed in the specification;
(g) that the prescribed declaration lodged in respect of the application for the patent contains a false statement or representation which is material and which the patentee knew to be false at the time when the declaration was made;
(h) that the application for the patent should have been refused in terms of section 36;
(i) that the complete specification claims as an invention a microbiological process or a product thereof and that the provisions of section 32(6) have not been complied with.

 

(2) An application for revocation shall be served on the patentee and lodged with the registrar in the prescribed manner and shall thereafter be dealt with in the manner prescribed.

 

(3) The commissioner shall decide whether the patent shall be revoked or whether and, if so, subject to what amendments, if any, of the specification or claims thereof, the patent shall be upheld: Provided that the commissioner shall not allow any amendment which is in conflict with the provisions of section 51(6) or (7): Provided further that the commissioner may in the exercise of his discretion as to costs take into consideration the conduct of the patentee in framing his specification and claims and permitting them to remain as so framed.