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

Chapter VI : Grant, duration and effect of patents

48. Rights of patentee of restored patent
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(1)A patentee of a patent restored in terms of section 47 shall not by virtue of the provisions of this Act institute any proceedings against or recover damages from any person who—
(a)infringed the patent after the lapse of a period of six months from the date on which the renewal fee was due and before the date on which the application for the restoration of the patent was advertised;
(b)used, offered to dispose of or disposed of any article made or imported in the period referred to in paragraph (a); or

[Paragraph (b) substituted by section 8(a) of Act No. 58 of 2002.]

(c)
(i)during the period set out in paragraph (a) commenced using or exercising the invention to which the patent relates and who thereafter continues to use or exercise the invention; or
(ii)uses or offers to dispose of or disposes of any articles or products produced by the continued use or exercise referred to in subparagraph (i):

[Sub-paragraph (ii) substituted by section 8(b) of Act No. 58 of 2002.]

Provided that the exemption conferred by this subsection shall be limited to the particular person mentioned in paragraph (c)(i) or (ii), his executor, administrator, successor or assignee or acquirer, as the case may be.

 

(2)Where a patent has been restored under section 47, any person who, during the period referred to in subsection (1)(a), has expended any money, time or labour with a view to making, using, exercising, offering to dispose of, disposing of or importing the invention, may apply in the prescribed manner to the commissioner for compensation in respect of the money, time and labour so expended.

[Sub-section (2) substituted by section 8(c) of Act No. 58 of 2002.]

 

(3)The commissioner may, after hearing the parties concerned, assess the amount of such compensation if in his opinion the application ought to be granted and determine the time within which such compensation shall be paid.

 

(4)Any amount assessed under subsection (3) shall not be recoverable as a debt or damages but, if it is not paid within the time determined by the commissioner, the patent shall lapse.